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THE  PRINCIPLET 


OF 


INTERNATIONAL  LAW 


BY 


T.  J.  LAWRENCE,  M.A.,  LL.D. 


Rector  of  Girton,  and  Lecturer  in  Downing  College,  Cambridge,  England; 
Associate  of  the  Institute  of  International  Law  ; 

Lecturer  in  Maritime  Law  at  the  Royal  Naval  College,  Greenwich  ; 
Lately  University  Extension  Professor  of  History  and  International 
Law  in  the  University  of  Chicago,  U.S.A. ; 

Sometime  Deputy  Professor  of  International  Law  in  the 
University  of  Cambridge,  England 


SECOND  EDITION,  REVISED 


BOSTON,  U.S.A. 

D.  C.  HEATH  & CO.,  PUBLISHERS 
1898 


Copyright,  1895, 

By  T.  J.  LAWRENCE. 


Entered  at  Stationers’  Hall. 


Norfojoolf  -press 

J,  S.  Cushing  & Co.  — Berwick  & Smith 
Norwood  Mass.  U.S.A. 


To 

My  American  Pupils 


Digitized  by  the  Internet  Archive 
in  2017  with  funding  from 
Princeton  Theological  Seminary  Library 


https://archive.org/details/principlesofinteOOIawr 


PREFACE. 


International  Law  may  be  regarded  as  a living  or- 
ganism, which  grows  with  the  growth  of  experience  and  is 
shaped  in  the  last  resort  by  the  ideas  and  aspirations  current 
among  civilized  mankind.  He  who  would  accurately  de- 
scribe its  present  condition  must  sketch  the  outlines  of  its 
past  history  and  gauge  the  strength  of  the  forces  which  are 
even  now  acting  upon  it.  He  must  understand  the  processes 
whereby  it  reached  the  shape  in  which  we  see  it  and  forecast 
the  changes  which  will  accompany  its  future  growth.  The 
perfect  publicist  must  take  all  philosophy,  all  history  and  all 
diplomacy  to  be  his  province.  He  must  weigh  in  the  balance 
of  absqlute  impartiality  the  actions  of  statesmen  and  the 
decisions  of  judges.  He  must  be  familiar  in  equal  degree 
with  the  rough  amenities  of  camps  and  the  stately  etiquette 
of  courts.  I lay  no  claim  to  the  possession  of  these  exalted 
qualifications.  I have  but  attempted  to  trace  the  develop- 
ment of  International  Law  in  such  a way  as  to  show  on  the 
one  hand  its  relation  to  a few  great  ethical  principles  and  on 
the  other  its  dependence  upon  the  hard  facts  of  history.  The 
severest  critic  cannot  be  more  sensible  than  I am  of  the  de- 
ficiencies of  my  work.  They  are  due  partly  to  the  greatness 
of  the  task  compared  with  the  powers  of  the  doer,  and  partly 
to  untoward  circumstances  of  change  and  unrest  which  ham- 
pered its  progress  from  beginning  to  end.  I shall  be  more 


VI 


PREFACE. 


than  satisfied  if  I have  succeeded  in  placing  before  students 
of  political  science  a clear  and  readable  outline  of  one  of  the 
most  important  branches  of  their  subject. 

The  book  is  divided  into  four  parts.  The  first  deals  with 
the  nature  and  history  of  International  Law,  and  in  the  order 
of  thought  precedes  the  others,  which  set  forth  the  rules  ob- 
served among  states  during  peace,  war  and  neutrality.  But 
nevertheless  it  will  be  wise  to  leave  a careful  study  of  the 
questions  discussed  in  the  first  three  chapters  till  the  rest  of 
the  work  has  been  mastered.  Some  knowledge  of  the  usages 
of  international  society  is  necessary  before  the  student  is  in 
a position  to  appreciate  the  tendencies  of  opposing  schools  of 
thought  among  publicists.  Nor  need  any  inconvenience  arise 
from  this  mode  of  procedure ; for  nothing  is  easier  than  to 
turn  back  at  the  end  of  a book  and  read  again  with  an  edu- 
cated eye  the  early  pages,  whose  discussions  on  definition  and 
method  puzzled  the  mind  not  yet  familiar  with  the  subject 
of  which  they  treat.  I have  striven  throughout  to  avoid  un- 
necessary controversy.  When  I have  been  obliged  to  wrestle 
with  philosophical  problems  or  historical  puzzles,  I have  en- 
deavored to  avoid  the  reproach  of  mistaking  obscurity  for 
profundity.  But  on  the  other  hand  I have  recognized  that 
difficulties  are  not  overcome  when  they  are  shirked,  and  my 
aim  has  always  been  to  bring  to  bear  upon  them  the  best 
resources  at  my  disposal.  If  I have  failed,  the  fault  is  due, 
not  to  inability  to  see  the  mark,  but  to  lack  of  power  to 
hit  it. 

In  a work  written  in  English,  and  intended  in  the  main 
for  British  and  American  readers,  it  is  natural  that  most  of 
the  cases  should  be  taken  from  British  and  American  history. 
I have  so  taken  mine  of  set  purpose.  The  more  the  two 
great  English-speaking  peoples  know  of  each  other  the  better 
friends  they  will  be  ; and  on  their  friendly  co-operation  de- 


PREFACE. 


Vll 


pend  the  fairest  hopes  for  the  future  of  humanity.  No  one 
who  has  taught,  as  I have  taught,  on  both'  sides  of  the 
Atlantic,  can  have  failed  to  notice  that  the  influence  of  old 
controversies  and  misunderstandings  has  not  entirely  passed 
away,  even  among  the  educated  classes.  I have  approached 
these  questions  with  a sincere  desire  to  show  to  each  side 
the  strength  of  the  other’s  case  and  deal  out  impartial  justice 
on  every  occasion.  If  I have  ever  inclined  the  balance  too 
much  in  favor  of  my  own  country,  the  error  is  that  of  one 
who,  were  he  not  an  Englishman,  would  ask  no  better  fate 
than  to  be  an  American. 

The  story  I have  to  tell  will  be  found  in  the  text.  I have 
not  relegated  important  matter  to  notes,  nor  printed  on  my 
pages  long  quotations  from  other  authors  or  excerpts  from 
original  authorities.  I have  preferred  the  much  more  labo- 
rious task  of  extracting  their  substance  and  putting  it  in  my 
own  words  into  the  body  of  the  book,  which  I trust  has 
gained  thereby  in  both  the  decrease  of  bulk  and  increase  of 
readableness.  But  I have  taken  care  to  provide  the  means  of 
checking  my  assertions.  At  the  bottom  of  nearly  every  page 
will  be  found  references,  by  the  use  of  which  teachers  and 
students  can  amplify  or  correct  the  statements  in  the  text  and 
men  of  affairs  obtain  the  more  detailed  information  they  may 
want  for  practical  purposes.  The  notes  are,  I hope,  sufficient. 
My  object  has  been  to  make  them  adequate  without  over- 
loading them  with  matter.  I have  not,  for  instance,  referred 
to  a large  number  of  writers  of  all  degrees  of  authority,  when 
the  citation  of  a few  great  ones  gave  the  necessary  support 
to  my  argument ; nor  have  I quoted  a dozen  cases,  when  one 
or  two  were  enough.  I have  also  taken  care  that  most  of 
the  cases  given  in  the  text  should  be  something  more  than 
mere  names  to  my  readers.  The  material  facts  are  almost 
always  described,  so  that  the  points  of  law  may  be  seen  in 


PREFACE. 


yiii 

relation  to  the  actual  circumstances  which  were  before  the 
courts.  The  table  of  contents  has  been  so  arranged  as  to 
afford  an  analysis  of  the  whole  book. 

The  writer  of  every  new  work  on  International  Law  is  the 
debtor  of  all  who  have  gone  before  him  in  his  particular 
sphere.  His  best  acknowledgments  are  to  be  found  in  his 
references  and  quotations.  The  extent  of  my  own  obliga- 
tions to  others  may  be  roughly  measured  by  the  frequency 
with  which  their  names  occur  in  my  notes ; but  I cannot 
refrain  from  making  special  mention  of  two.  I have  been 
helped  at  every  turn  by  the  robust  judgment  and  incisive 
arguments  of  Mr.  R.  H.  Dana,  and  the  judicial  reasoning  and 
encyclopedic  knowledge  of  Mr.  W.  E.  Hall.  Both  have 
joined  the  majority;  not  indeed  too  soon  for  fame,  but  too 
soon  for  the  expectations  of  those  who  profited  by  their 
labors.  Mr.  Hall  was  taken  from  us  in  the  zenith  of  his 
powers,  and  Mr.  Dana  had  collected  the  materials  for  what 
I venture  to  think  would  have  been  the  best  of  all  books  on 
International  Law,  had  he  lived  to  write  it.  To  the  mem- 
ory of  both  I offer  my  humble  tribute  of  reverence  and 
admiration. 

T.  J.  LAWRENCE. 

July  24,  1895. 

<X>X»o 

PREFACE  TO  THE  SECOND  EDITION. 

A sudden  and  pressing  call  for  a Second  Edition  has  left  me  little 
time  for  alterations.  I have,  however,  endeavored  to  benefit  by  the 
friendly  criticism  the  book  has  received.  A few  mistakes  in  names  and 
dates  have  been  corrected.  One  or  two  statements  that  seemed  to 
require  modification  have  received  it ; and  an  effort  has  been  made  by 
the  addition  of  foot-notes  here  and  there  to  bring  up  to  date  the  infor- 
mation contained  in  the  text. 

T.  J.  LAWRENCE. 

Girton  Rectory,  Cambridge,  England, 

November  2,  1897, 


TABLE  OF  CONTENTS. 


Part  I. 

THE  NATURE  AND  HISTORY  OF  INTERNATIONAL  LAW. 
CHAPTER  I. 


The  Definition  of  International  Law. 

6BCTI0N  PAGE 

1.  The  definition  of  International  Law.  Difficulty  of  making  it  per- 

fectly satisfactory 1 

2.  Its  principles  are  rules,  whether  they  are  or  are  not  laws  . 2 

3.  It  is  generally  observed  by  states,  though  here  and  there  some 

of  its  commands  may  be  disregarded  .....  3 

4.  It  applies  to  civilized  states  only,  but  it  is  not  confined  to 

Christian  states  4 

5.  It  regulates  the  conduct  of  states  in  their  mutual  dealings, 

hostile  as  well  as  pacific  .5 

6.  It  includes  the  rules  of  maritime  capture,  but  not  the  rules 

for  determining  which  of  two  conflicting  systems  of  law 
shall  prevail  in  matters  of  private  right  ....  6 

7.  The  history  of  the  names  given  to  it 8 


CHAPTER  II. 

The  Nature  of  International  Law. 

8.  The  two  problems  : — (a)  Is  International  Law  really  law  ? 

(b)  Are  its  precepts  derived  from  intuition  or  experience  ? . 10 

9.  Austin’s  definition  of  law  excludes  International  Law  ...  10 

10.  He  lays  stress  upon  one  element  only  in  a complex  conception  12 

11.  A definition  can  be  made  turning  upon  the  idea  of  order  in- 

stead of  the  idea  of  force,  and  if  this  is  done  International 
Law  becomes  law  in  the  strictest  sense 
ix 


14 


X 


CONTENTS. 


SECTION  PAGE 

12.  Importance  of  the  question  whether  International  Law  proceeds 

by  the  a priori  or  the  historical  method  ....  16 

13.  Whichever  method  we  adopt  we  cannot  exclude  ethical  con- 

siderations   ....  17 

14.  Many  writers  confuse  the  ethical  and  the  historical  method  . 18 

15.  States  appeal  in  their  controversies  to  usage  and  precedent  . 19 

16.  Such  appeals  show  the  historical  method  to  be  correct  . . 20 

17.  This  conclusion  strengthened  by  the  absence  of  general  agree- 

ment as  to  the  basis  of  ethics  ......  22 

18.  The  place  of  ethical  considerations  in  International  Law  . 23 

19.  Summary  of  the  results  of  the  two  inquiries  undertaken  in  this 

chapter 25 

CHAPTER  III. 

The  History  of  International  Law. 

20.  It  goes  back  to  ancient  Greece  and  Rome,  and  divides  into  three 

periods 26 

21.  I.  In  the  First  Period  — from  the  earliest  times  to  the  Roman 

Empire  — states  as  such  had  no  mutual  rights  and  duties. 
Kinship  was  the  basis  of  the  relations  between  Hellenic  com- 
munities   27 

22.  Republican  Rome  possessed  no  true  International  Law  . . 29 

23.  II.  In  the  Second  Period  — from  the  Roman  Empire  to  the  Refor- 

mation — it  was  deemed  that  the  relations  of  states  must  be 
regulated  by  a common  superior.  The  Emperor  was  such  a 
superior  while  the  Empire  remained  all-powerful ...  30 

24.  The  Holy  Roman  Empire  and  the  Papacy  claimed  universal 

authority  during  the  Middle  Ages  .....  32 

25.  The  idea  of  a common  superior  disappeared  at  the  Reforma- 

tion   . 33 

26.  For  a time  there  was  grave  danger  of  utter  lawlessness  in 

international  affairs  . . 34 

27.  Influences  which  made  for  improvement  during  the  Middle 

Ages 35 

28.  Importance  of  the  conception  of  territorial  sovereignty  . . 36 

29.  Cruelty  of  the  usages  of  war.  Growth  of  maritime  codes  . 38 

30.  III.  In  the  Third  Period  — from  the  Reformation  to  the  present 

time  — the  ruling  principle  is  that  there  exists  a society  of 
independent  states,  the  members  of  which  have  mutual 
rights  and  obligations 39 

31.  This  change  in  ideas  was  brought  about  by  the  work  of 

Grotius  and  the  theory  of  a Law  of  Nature  ...  40 


CONTENTS. 


xi 


32. 

33. 

34. 

35. 

36. 

37. 

38. 

39. 

40. 

41. 


PAGE 


Causes  of  the  vast  influence  exercised  by  Grotius  ...  42 

The  Grotian  version  of  Nature  and  Natural  Law  . . .43 

The  theory  of  a Law  of  Nature  criticised  ....  44 

Its  connection  with  the  theory  of  a State  of  Nature  . . 45 

Their  effect  in  obtaining  acceptance  for  an  improved  Inter- 
national Law 47 

Grotius  insists  on  the  independence  of  states  and  the  territo- 
rial sovereignty  of  rulers 47 

His  rules  with  regard  to  dominion  taken  from  the  Jus  Gen- 
tium   49 

His  rules  for  the  acquisition  of  newly  discovered  territory 

taken  from  the  Roman  law  of  occupation  . ...  51 

His  principles  triumphed  in  the  Peace  of  Westphalia  . . 52 

Since  1648  International  Law  has  developed  on  the  lines  laid 
down  by  him . * .53 


CHAPTER  IV. 

The  Subjects  of  International  Law. 


42.  List  of  the  subjects  of  International  Law 

43.  I.  Sovereign  states 

44.  Only  the  more  civilized  sovereign  states  are  subjects  of  Inter 

national  Law  

45.  State-life  and  its  continuity.  The  different  kinds  of  confed 

erations  ......... 

46.  Other  unions  between  states 

47.  International  Law  deals  only  with  cases  where  there  is 

division  of  the  powers  of  external  sovereignty  . 

48.  The  Great  Powers  of  Europe  and  the  United  States  of  Amer 

ica  possess  more  authority  than  other  sovereign  states 

49.  II.  Part-sovereign  states  ...... 

50.  Communities  under  a suzerain  .... 

51.  Members  of  a system  of  confederated  states  . 

52.  Permanently  neutralized  states  .... 

53.  III.  Civilized  belligerent  communities  not  being  states  . 

54.  IV.  Corporations,  both  ordinary  and  privileged  . 

55.  V.  Individuals  

56.  Admission  of  new  subjects  of  International  Law  . 

57.  (1)  States  hitherto  accounted  barbarous  . 

58.  (2)  States  formed  by  civilized  men  in  hitherto  uncivilized 

countries  

59.  (3)  States  where  independence  is  recognized  in  consequence 

of  a successful  revolt  ...... 

60.  The  various  methods  of  recognition  of  independence 


65 

56 

58 

60 

63 

64 

65 
67 
69 
73 

76 

77 
79 

83 

84 

84 

85 

87 

88 


CONTENTS. 


xii 


CHAPTER  Y. 


The  Sources  and  Divisions  or  International  Law. 

SECTION  PAGE 

61.  Meaning  of  the  phrase,  The  sources  of  International  Law  . . 91 

62.  (1)  The  works  of  great  publicists .92 

63.  (2)  Treaties 94 

64.  (3)  Decisions  of  prize  courts,  international  conferences,  and 

arbitral  tribunals  ........  100 

65.  (4)  State-papers  other  than  treaties 103 

66.  (5)  Instructions  given  by  states  for  the  guidance  of  their  own 

officers  and  tribunals  ........  105 

67.  Divisions  of  International  Law.  The  old  attempts  at  division 

useless  ...........  106 

68.  States  possess  normal  and  abnormal  rights  and  obligations  . 108 

69.  Normal  rights  and  obligations  are  connected  with  indepen- 

dence, property,  jurisdiction,  equality,  and  diplomacy. 
Abnormal  rights  and  obligations  are  connected  with  war 
and  neutrality  109 


Part  II. 

THE  LAW  OF  PEACE. 

CHAPTER  I. 

Rights  and  Obligations  connected  with  Independence. 


70.  Independence.  Definition  and  nature  of  the  right  . . . Ill 

71.  Part-sovereign  states  not  fully  independent  ....  112 

72.  Voluntary  restrictions  upon  the  freedom  of  action  of  sovereign 

states  113 

73.  Involuntary  restriction  upon  the  freedom  of  action  of  sove- 

reign states  114 

74.  Intervention.  Its  essential  characteristics 115 

75.  General  principles  with  regard  to  intervention  ....  116 

76.  Intervention  based  upon  the  necessity  of  self-preservation  . 117 

77.  Intervention  based  upon  treaty-right 118 

78.  Intervention  based  upon  the  protection  of  another  state 

against  illegal  intervention . . . . . . .119 

79.  Intervention  based  upon  grounds  of  humanity  . . . 119 

80.  Grounds  of  intervention  put  forward  on  various  occasions  . . 121 

81.  (1)  Protection  from  imminent  danger 121 


CONTENTS. 


xiii 


SECTION  1’AGE 

82.  (2)  Protection  of  another  state  from  illegal  intervention  . 122 

83.  (3)  Treaty-right 123 

81.  (4)  Request  of  one  of  the  parties 125 

85.  (5)  Preservation  of  the  balance  of  power  ....  126 

86.  (6)  Interference  with  revolution 130 

87.  (7)  Humanity  . 132 

88.  Complication  of  most  cases  of  intervention 133 

89.  The  doctrine  of  non-intervention 135 


CHAPTER  II. 

Rights  and  Obligations  connected  with  Property. 


90.  States  are  political  units  capable  of  holding  both  territorial  and 

lion-territorial  possessions 136 

91.  Extent  of  a state’s  territorial  possessions 137 

92.  Legal  modes  of  acquiring  territory : — (1)  Occupation  . . . 143 

93.  Applies  only  to  res  nullius,  and  consists  of  (a)  annexation 

plus  (6)  settlement 146 

94.  Extent  of  territory  gained  by  occupation  ....  149 

95.  Recent  developments  of  the  doctrine  of  occupation  as  ap- 

plied to  Africa 152 

96.  Native  tribes  to  be  treated  justly  and  trained  in  civilization  . 154 

97.  Legal  modes  of  acquiring  territory  : — (2)  Cession  . . . 156 

98.  Legal  modes  of  acquiring  territory : — (3)  Conquest  . . .158 

99.  Legal  modes  of  acquiring  territory  : --  (4)  Prescription  . . 159 

100.  Legal  modes  of  acquiring  territory  : — (5)  Accretion  . . . 160 

101.  A state  may  exercise  power  over  territory  as  A part  of  its  Do- 

minions . . • • ■ 160 

102.  A state  may  exercise  power  over  territory  as  A Protectorate  . 162 

103.  A state  may  exercise  power  over  territory  as  A Sphere  of  In- 

fluence   164 

104.  Chartered  companies  and  spheres  of  influence  ....  166 

105.  Rights  over  waters.  (1)  Claims  to  sovereignty  over  the  high 

seas 167 

106.  (2)  The  American  claim  to  prohibit  seal-flshing  in  Bering 

Sea  . 170 

107.  (3)  Claims  to  jurisdiction  beyond  the  marine  league  . . 175 

108.  (4)  The  right  of  innocent  passage  . . . . . .176 

109.  (5 ) The  special  case  of  the  Dardanelles  and  the  Bosphorus  . 178 

110.  (6)  The  legal  position  of  interoceanic  canals  ....  180 

111.  (7)  The  use  of  sea  fisheries  .......  182 

112.  (8)  The  navigation  of  great  arterial  rivers  ....  186 


XIV 


CONTENTS. 


CHAPTER  III. 

Rights  and  Obligations  connected  with  Jurisdiction. 

SECTION  PAGE 

113.  I.  A state  has  jurisdiction  over  all  persons  and  things  within  its 

territory,  with  a few  exceptions 190 

114.  Natural-born  subjects 190 

115.  Naturalized  subjects  ........  193 

116.  International  questions  connected  with  naturalization  . . 194 

117.  Domiciled  aliens 198 

118.  Travellers  passing  through  the  territory  ....  202 

119.  Rules  relating  to  various  kinds  of  things  within  the  territory  202 

120.  II.  A state  has  jurisdiction  over  all  its  ships  on  the  high  seas  . 205 

121.  III.  A state  has  limited  jurisdiction  over  its  subjects  abroad  . 208 

122.  IV.  A state  has  jurisdiction  over  pirates  seized  by  its  vessels  . 209 

123.  Distinction  between  piracy  by  the  law  of  nations  and  piracy 

by  municipal  law 213 

124.  The  slave  trade  not  piracy  by  the  law  of  nations.  Attempts 

to  put  it  down  by  treaty 214 

125.  The  claim  to  jurisdiction  over  foreigners  for  offences  committed 

abroad 219 

126.  Exceptions  to  ordinary  rules  about  jurisdiction : — (1)  Foreign 

sovereigns  and  their  suites . 221 

127.  Exceptions  to  ordinary  rules  about  jurisdiction  : — (2)  Diplomatic 

agents  of  foreign  states 222 

128.  Exceptions  to  ordinary  rules  about  jurisdiction  : — (3)  Public 

armed  forces  of  foreign  states 222 

129.  Exemption  of  public  vessels  of  one  state  in  the  territorial 

waters  of  another  not  absolute  and  complete  . . . 226 

130.  The  case  of  political  offenders  and  fugitive  slaves  . . . 226 

131.  Exceptions  to  ordinary  rules  about  jurisdiction  : — (4)  Subjects 

of  Western  states  resident  in  Eastern  countries  . . . 229 

132.  Extradition.  A state  is  not  obliged  to  grant  it  unless  bound  to 

do  so  by  treaty 233 

133.  The  conditions  generally  inserted  in  extradition  treaties  . 235 

CHAPTER  IV. 

Rights  and  Obligations  connected  with  Equality. 

134.  Meaning  and  utility  of  the  principle  of  equality.  Modifications 

now  necessary  in  the  statement  of  it  . . . . . 241 

135.  The  primacy  of  the  Great  Powers  in  Europe  ....  242 

136.  rl'he  primacy  of  the  United  States  in  America  ....  247 


CONTENTS. 


XV 

SECTION  PAGE 

137.  Matters  of  ceremony  and  etiquette  connected  with  the  doctrine 

of  equality  ..........  252 

138.  Rules  of  precedence  for  states  and  their  representatives  . 253 

139.  Titles  and  their  recognition  by  other  states  ....  255 

140.  Maritime  ceremonials  256 

CHAPTER  Y. 

Rights  and  Obligations  connected  with  Diplomacy 

141.  Diplomatic  intercourse  necessary.  Growth  of  resident  embassies  258 

142.  Development  of  different  kinds  of  diplomatic  ministers  . . 260 

143.  Classification  of  diplomatic  ministers  ......  261 

144.  Sovereign  states  possess  the  right  of  legation  fully,  part-sovereign 

states  to  a limited  extent  .......  263 

145.  The  rupture  of  diplomatic  relations  is  a serious  step  which  gener- 

ally ends  in  war 264 

146.  But  a state  may  on  good  grounds  refuse  to  receive  a particular 

individual,  or  ask  for  his  recall 265 

147.  The  commencement  and  termination  of  diplomatic  missions  and 

the  ceremonies  connected  therewith 269 

148.  Consuls.  Their  position  and  immunities  .....  272 

149.  Diplomatic  immunities.  Their  general  nature  and  the  reasons 

for  their  existence  274 

150.  Immunities  connected  with  the  person  of  the  diplomatic 

agent 274 

151.  Immunities  connected  with  the  property  of  the  diplomatic 

agent  280 

152.  The  treaty-making  power.  Ratification  of  treaties  . . . 284 

153.  The  interpretation  of  treaties  .......  286 

154.  The  obligation  of  treaties 287 


Part  III. 

THE  LAW  OF  WAR. 

CHAPTER  I. 

The  Definition  of  War  and  other  Preliminary  Points. 

155.  The  nature  and  definition  of  war  .......  290 

156.  Modes  of  putting  stress  upon  a state  by  violence  which  is  not 

held  to  amount  to  open  war 293 

157.  (1)  Reprisals.  .........  293 


XVI 


CONTENTS. 


SECTION  ’ PAGE 

158.  (2)  Embargo  ..........  295 

159.  (3)  Pacific  blockade  297 

160.  The  value  and  admissibility  of  these  anomalous  measures  . . 299 

161 . Declarations  of  war  are  not  necessary 299 

162.  The  meaning  and  effects  of  recognition  of  belligerency  . . 302 

163.  The  circumstances  under  which  it  may  lawfully  be  given  . 303 

164.  The  question  whether  it  can  be  given  to  a fleet  acting  with- 

out a land  base  of  operations  ......  305 

165.  The  immediate  legal  effects  of  the  outbreak  of  war  . . . 306 

166.  The  effect  of  war  upon  treaties  to  which  the  belligerents  and 

powers  other  than  the  belligerents  are  parties  . . . 308 

167.  The  effect  of  war  upon  treaties  to  which  the  belligerents  only  are 

parties 310 

168.  Table  showing  tlie  effect  of  war  on  treaties 313 


CHAPTER  II. 

The  Acquisition  bv  Persons  and  Property  of  Enemy  Character. 


169.  I.  Enemy  character.  The  extent  to  which  individuals  possess  it  314 

170.  (1)  Persons  enrolled  in  the  enemy’s  fighting  forces  . . 314 

171.  (2)  Crews  of  the  enemy’s  merchant  vessels  ....  315 

172.  (3)  Non-combatant  subjects  of  the  enemy  state  . . . 316 

173.  (4)  Persons  other  than  enemy  subjects,  resident  in  the 

enemy’s  country  . 317 

174.  (5)  Residents  in  places  occupied  by  the  forces  of  the  enemy  317 

175.  (6)  Neutral  subjects  having  houses  of  trade  in  the  enemy’s 

country 318 

176.  Summary  of  the  circumstances  under  which  enemy  character  is 

acquired  by  persons - . 318 

177.  Rules  for  determining  domicil  in  relation  to  questions  of  bellig- 

erent capture  .319 

178.  II.  Enemy  character.  The  extent  to  which  property  possesses  it  322 

179.  (1)  Property  belonging  to  the  enemy  state  ....  322 

180.  (2)  Property  belonging  to  subjects  of  the  enemy  state  . . 323 

181.  (3)  Produce  of  estates  owned  by  neutrals  in  places  under 

enemy  control 324 

182.  (4)  Neutral  property  incorporated  in  enemy  commerce  or 

subject  to  enemy  control 325 

183.  Summary  of  the  circumstances  under  which  enemy  character  is 

acquired  by  property 326 


CONTENTS, 


XVII 


CHAPTER  III. 

The  Laws  of  War  with  regard  to  Enemy  Persons. 

SECTION  PAGE 

184.  The  treatment  accorded  to  enemy  subjects  found  in  a state  at 

the  outbreak  of  war 328 

185.  Ancient  and  modern  ideas  of  the  violence  permissible  in  war  . 330 

186.  I.  As  to  combatants  note  (1)  The  growth  of  the  practice  of  giv- 

ing quarter 332 

187.  (2)  The  treatment  of  prisoners  of  war  .....  333 

188.  (3)  The  care  of  the  sick  and  wounded 337 

189.  (4)  The  improved  treatment  of  the  garrisons  of  captured 

places 339 

190.  (5)  The  prohibition  of  certain  means  of  destruction  . . 341 

191.  II.  As  to  non-combatants  note  (1)  The  gradual  amelioration  of 

their  condition 342 

192.  (2)  The  extent  of  their  exemption  from  personal  injury  . 344 

193.  (3)  The  diminution  of  the  barbarities  inflicted  on  the  inhab- 

itants of  captured  towns 346 

194.  (4)  The  special  protection  granted  to  those  who  tend  the  sick 

and  wounded  . 348 

CHAPTER  IV. 

The  Laws  of  War  with  regard  to  Enemy  Property  on  Land. 

195.  Property  of  the  enemy  government  found  within  a state  at  the 

outbreak  of  war 350 

196.  Real  property  of  enemy  subjects  found  within  a state  at  the  out- 

break of  war 350 

197.  Personal  property  of  enemy  subjects  found  within  a state  at  the 

outbreak  of  war  .........  352 

198.  The  special  case  of  stock  held  by  enemy  subjects  in  the  public 

debt 355 

199.  Booty 357 

200.  Belligerent  occupation.  Its  history 358 

201.  The  essentials  of  belligerent  occupation  ....  363 

202.  Rights  over  state  property  gained  by  occupation  . . . 367 

203.  Rights  over  private  property  gained  by  occupation  . . 372 

204.  The  special  case  of  requisitions,  contributions  and  fines  . 371 


xviii 


CONTENTS. 


CHAPTER  V. 

The  Laws  of  War  with  regard  to  Enemy  Property  at  Sea. 


SECTION  PAGB 

205.  The  extent  to  which  public  vessels  of  the  enemy  are  liable  to 

capture 379 

206.  The  extent  to  which  private  vessels  of  the  enemy  are  liable  to 

capture  .....  382 

207.  The  extent  to  which  enemy  goods  at  sea  are  liable  to  capture  . 385 

208.  The  practice  of  giving  and  accepting  ransom  bills  . .'  . 387 

209.  Recapture  at  sea  and  the  jus  postliminii 389 

210.  The  right  of  search  392 

211.  Ship’s  papers  ..........  397 

212.  Prize  Courts : — (1)  Their  nature,  and  the  responsibility  of  the 

state  for  their  decisions 398 

213.  (2)  Their  jurisdiction . 402 

214.  (3)  Their  procedure  403 

215.  (4)  The  obligation  of  captors  to  send  prizes  in  for  adjudica- 

tion by  them  404 

216.  History  of  the  proposal  to  exempt  private  property  from  capture 

at  sea 407 

217.  Arguments  for  and  against  it 413 


CHAPTER  VI. 

The  Agents,  Instruments  and  Methods  of  Warfare. 


218.  I.  The  Agents  of  warfare.  Doubts  as  to  some  and  conditional 

legality  of  others 417 

219.  (1)  Guerilla  troops 417 

220.  (2)  Levies  en  masse 422 

221.  (3)  Savage  troops 424 

222.  (4)  Spies 426 

223.  (5)  Privateers 429 

224.  (6)  A volunteer  navy 432 

225.  II.  The  instruments  and  methods  of  warfare.  Prohibition  of 

some  and  conditional  legality  of  others  ....  435 

226.  (1)  Assassination  is  forbidden  ......  436 

227.  (2)  The  use  of  poison  is  condemned 438 

228.  (3)  Projectiles  which  inflict  useless  suffering  are  prohibited  . 438 

229.  (4)  Devastation  is  generally  unlawful,  but  may  be  justified 

under  special  circumstances  ......  440 

230.  (5)  Stratagems  are  allowable  unless  they  violate  good  faith  . 444 


CONTENTS. 


XIX 


CHAPTER  VII. 

The  Non-hostile  Intercourse  of  Belligerents. 

SECTION  PAGE 

231.  Non-hostile  intercourse  can  be  carried  on  by  belligerents  during 

war  440 

232.  (1)  Elags  of  truce 447 

233.  (2)  Cartels 448 

234.  (3)  Passports  and  safe-conducts  ......  448 

235.  (4)  Licenses  to  trade 449 

236.  (5)  Capitulations 452 

237.  (6)  Truces  and  armistices  .......  455 

CHAPTER  VIII. 

Peace  and  the  Means  of  Preserving  Peace. 

238.  War  is  usually  terminated  by  a treaty  of  peace  ....  457 

239.  The  legal  consequences  of  the  restoration  of  peace  . . . 458 

240.  The  simultaneous  growth  in  modern  times  of  a horror  of  war  and 

preparations  for  war 460 

241.  Remedies  for  war.  Arbitration  the  most  hopeful  . . . 464 

242.  Possibility  of  an  agreement  to  submit  to  arbitration  all  disputes 

between  Great  Britain  and  the  United  States  . . . 468 


Part  IV. 

THE  LAW  OF  NEUTRALITY. 

CHAPTER  I. 

The  Nature  of  Neutrality. 

243.  Definition  of  neutrality.  The  elements  out  of  which  the  Law  of 

Neutrality  has  been  formed 473 

244.  The  history  of  neutrality 475 

245.  Neutrality  and  neutralization.  The  correct  meaning  of  neutral- 

ization   484 

246.  Instances  of  true  neutralization  examined  ....  487 

247.  The  special  case  of  neutralized  portions  of  unneutralized 

states 494 

248.  The  divisions  of  the  Law  of  Neutrality 498 


xx 


CONTENTS. 


CHAPTER  II. 

The  Doties  of  Belligerent  States  towards  Neutral  States. 

SECTION  PAGE 

249.  A belligerent  state  ought  (1)  To  refrain  from  carrying  on  hostil- 

ities within  neutral  territory 500 

250.  (2)  To  abstain  from  making  on  neutral  territory  direct  prep- 

arations for  acts  of  hostility 503 

251.  (3)  To  obey  all  reasonable  regulations  made  by  neutral  states 

for  the  protection  of  their  neutrality  ....  509 

252.  (4)  To  make  reparation  to  any  state  whose  neutrality  it  may 

have  violated  ...  ...  . . 514 

CHAPTER  III. 

The  Doties  of  Neutral  States  towards  Belligerent  States. 

253.  A neutral  state  is  bound  (1)  Not  to  give  armed  assistance  to 

either  belligerent  or  grant  to  one  privileges  denied  to  the 
other 518 

254.  (2)  Not  to  supply  belligerents  with  money  or  instruments  of 

warfare  ..........  520 

255.  (3)  Not  to  allow  belligerents  to  send  troops  through  its  terri- 

tory or  levy  soldiers  therein 524 

256.  (4)  Not  to  suffer  belligerent  agents  or  its  own  subjects  to  fit 

out  armed  expeditions  within  its  dominions,  or  increase 
therein  the  warlike  force  of  any  belligerent  ship  or  expe- 
dition   530 

257.  (5)  Not  to  permit  its  subjects  to  enter  the  military  or  naval 

service  of  the  belligerents,  or  accept  letters  of  marque 
from  either  of  them  . . . . . .'  . . 532 

258.  (6)  To  make  reparation  to  any  belligerent  who  may  have 

been  seriously  and  specifically  injured  by  failure  on  its 
part  to  perform  its  neutral  duties  . . . . 535 

259.  The  measure  of  “due  diligence”  537 

260.  The  consequences  ‘of  resistance  to  unlawful  attack  in  neutral 

waters 540 

261.  The  difficulty  with  regard  to  ships  armed  and  equipped  in  neutral 

waters  for  the  warlike  purposes  of  a belligerent  . . . 542 

262.  Two  attempts  to  solve  it 547 

263.  The  three  rules  of  the  Treaty  of  Washington  and  the  award  of 

the  Geneva  Tribunal 549 

264.  The  powers  possessed  by  neutral  governments  for  the  protection 

and  vindication  of  their  neutrality 554 


CONTENTS. 


XXI 


CHAPTER  IV. 

Ordinary  Neutral  Commerce. 

SECTION  PAGE 

265.  The  conflict  between  belligerent  and  neutral  interests  in  the  mat- 

ter of  trade  557 

266.  The  history  of  the  rules  of  ordinary  maritime  capture  . . . 559 

267.  The  Declaration  of  Paris 567 

268.  The  claim  that  neutral  vessels  under  convoy  are  exempt  from 

belligerent  search 571 

CHAPTER  V. 

Blockade. 

269.  The  nature  and  history  of  blockade  . . . . . .576 

270.  Strategic  and  commercial  blockades.  The  legality  of  the  latter  . 579 

271.  The  heads  of  the  law  of  blockade 581 

272.  (1)  The  existence  of  an  actual  blockade  ....  583 

273.  (2)  Knowledge  of  it 585 

274.  (3)  Violation  of  it 591 

275.  (4)  The  penalty  for  breach  of  it  . . . . . 593 

276.  The  doctrine  of  continuous  voyages  and  its  application  to  breach 

of  blockade 694 

CHAPTER  VI. 

Contraband  Trade. 

277.  The  nature  of  contraband  trade.  Neutral  states  are  not  bound 

to  stop  it 599 

278.  What  articles  are  contraband  of  war  ? 604 

279.  The  essentials  of  guilt  in  the  matter  of  contraband  trade  . . 613 

280.  The  penalty  for  carrying  contraband  ......  617 

281.  Two  anomalous  practices : — (a)  Taking  contraband  goods  out 

of  vessels,  (6)  Pre-emption 619 

CHAPTER  VII. 

Unneutral  Service. 

282.  The  acts  which  are  forbidden  under  the  designation  of  unneutral 

service 624 

283.  The  penalty  for  unneutral  service  and  the  essentials  of  liability 

to  it  ..........  629 

284.  The  distinctions  between  the  offences  of  carrying  contraband 

and  engaging  in  unneutral  service  .....  633 


Part  I. 


THE  NATURE  AND  HISTORY  OF  INTER- 
NATIONAL LAW . 

CHAPTER  I. 

THE  DEFINITION  OF  INTERNATIONAL  LAW. 

§1* 

International  Law  may  be  defined  as  The  rules  which 
determine  the  conduct  of  the  general  body  of  The  definition  of 

. , . 7 . 7 7 . . 7 7 International  Law. 

civilized  states  in  their  dealings  with  one  another.  Difficulty  of  mnk- 

. . ing  it  quite  satis- 

ln  International  Law,  as  m other  sciences,  a factory, 
good  definition  is  one  of  the  last  results  to  be  arrived  at. 
Until  the  nature  and  scope  of  any  study  are  clearly  seen,  its 
boundaries  cannot  be  determined  with  perfect  accuracy.  A 
definition,  in  order  to  be  satisfactory,  ought  to  give  with  pre- 
cision the  marks  whereby  the  thing  to  be  defined  is  distin- 
guished from  all  other  things ; and  unless  it  does  this  it  is 
either  incomplete  or  misleading.  W e may  expect  that  differ- 
ent definitions  of  a science  will  be  given,  not  only  in  its  in- 
fancy, before  its  nature  and  limits  are  clearly  understood,  but 
even  in  its  maturity,  if  those  who  cultivate  it  differ  as  to  its 
methods  and  as  to  the  extent  of  the  subject-matter  with  which 
it  deals.  International  Law  is  in  this  latter  predicament.  It 
has  been  studied  for  ages  ; but  though  its  expounders  are  grad- 

1 


B 


2 


THE  DEFINITION  OF  INTERNATIONAL  LAW. 


ually  approaching  towards  the  adoption  of  a consistent  body 
of  doctrine,  they  have  not  yet  come  to  an  agreement  upon 
such  questions  as  the  exact  character  of  the  processes  to  be 
followed  in  their  reasoning,  or  the  relation  of  their  science  to 
Ethics  and  Jurisprudence.  Accordingly  each  writer’s  defini- 
tion is  colored,  to  a certain  extent,  by  his  own  views ; and 
the  definition  at  the  head  of  this  chapter  is  no  exception  to 
the  general  rule.  It  regards  International  Law,  not  as  an 
instrument  for  the  discovery  and  interpretation  of  a transcen- 
dental rule  of  right  binding  upon  states  as  moral  beings 
whether  they  observe  it  or  not  in  practice,  but  as  a science 
whose  chief  business  it  is  to  find  out  by  observation  the  rules 
actually  followed  by  states  in  their  mutual  intercourse,  ana 
to  classify  and  arrange  these  rules  by  referring  them  to  cer- 
tain fundamental  principles  on  which  they  are  based. 

§ 2- 

It  will  be  seen  that  in  the  definition  we  have  given,  no 
mention  is  made  of  rights  and  obligations  of  states.  These 
The  precepts  of  terms  have  been  carefully  excluded  in  order  to 

International  Law  “ 

are  rules  whether  avoid  the  controverted  question  whether  Inter- 

they  are  or  are  not  . 

laws-  national  Law  is,  strictly  speaking,  law  or  not. 

If  it  be  law  proper,  then  it  confers  rights  and  creates  obliga- 
tions ; but  if  the  term  law  is  improperly  applied  to  it,  we 
cannot  with  propriety  speak  of  rights  and  obligations  as  flow- 
ing from  it.  In  framing  a definition,  it  is  advisable  to  include 
as  little  controverted  matter  as  is  possible  without  sacrificing 
clearness  to  a desire  of  avoiding  difficulties.  Acting  upon 
this  principle,  we  have  used  the  neutral  term  rules  instead  of 
the  disputed  word  laws,  and  have  discarded  altogether  the 
phrase  rights  and  obligations.  The  question  whether  our 
science  is  properly  described  as  law  will  be  found  discussed 
further  on ; 1 but  whichever  side  in  the  controversy  we  take, 
we  may  adopt  the  definition  at  the  head  of  this  chapter. 

i See  §§  8-11. 


THE  DEFINITION  OF  INTERNATIONAL  LAW. 


3 


§ 3- 

The  governments  of  all  states,  whether  civilized  or  barbar- 
ous, are  compelled  to  exert  activity,  not  merely  in  conduct- 
ing their  internal  affairs,  but  also  in  regulating  international  Law 
their  conduct  towards  the  governments  and  peo-  served  by  states, 

° though  here  and 

pies  of  other  states.  Even  where  a state  adopts  there  some  of  its 

A commands  are  dis- 

a self-sufficient  theory  of  national  life,  and  en-  regarded, 
deavors,  as  China  did  till  quite  recent  times,  to  keep  its 
people  from  all  intercourse  with  foreigners,  it  does  not  escape 
from  the  necessity  of  dealing  with  them.  It  cannot  act  as 
if  it  were  alone  in  the  world,  for  the  simple  reason  that  it  is 
not  alone.  The  whole  machinery  of  non-intercourse  is  cre- 
ated with  a view  to  other  states,  and  absorbs  in  its  working 
no  small  portion  of  the  care  and  attention  of  the  government. 
If,  then,  external  affairs  have  from  the  necessity  of  the  case 
to  be  dealt  with  by  states  who  have  adopted  a policy  of  the 
most  rigorous  isolation,  it  is  clear  that  the  vast  majority  of 
peoples,  who  desire  a greater  or  less  amount  of  intercourse 
with  their  neighbors,  impose  thereby  upon  their  rulers  tho 
task  of  dealing  to  a very  large  extent  with  foreign  nations. 
The  coexistence  of  states  in  proximity  to  one  another  renders 
it  necessary  for  them  to  pay  some  sort  of  regard  to  each  other  ; 
and  the  more  civilized  the  states,  the  more  intimate  the  inter- 
course. Civilization  not  only  provides  men  with  many  inter- 
ests in  common ; but  it  also  tends  to  remove  man’s  suspicion 
of  his  brother  man.  Commerce,  intermarriage,  scientific  dis- 
covery, community  of  religion,  harmony  in  political  ideas, 
mutual  admiration  as  regards  achievements  in  art  and  litera- 
ture, identity  of  interests  or  even  of  passions  and  prejudices, 
— all  these,  and  countless  other  causes,  tend  to  knit  states 
together  in  a social  bond  somewhat  analogous  to  the  bond 
between  the  individual  man  and  his  fellows.  But  just  as 
men  could  not  live  together  in  a society  without  laws  and 
customs  to  regulate  their  actions,  so  states  could  not  have 
mutual  intercourse  without  rules  to  regulate  their  conduct. 


4 


THE  DEFINITION  OF  INTERNATIONAL  LAW. 


The  body  of  such  rules  is  called  International  Law.  We  do 
not  say  that  it  is  invariably  observed.  Like  other  law,  it  is 
sometimes  disregarded  by  those  who  are  supposed  to  submit 
to  it ; and  owing  to  the  absence  of  coercive  force  to  compel 
nations  to  obedience,  it  is  more  liable  to  be  violated  than  are 
the  laws  laid  down  by  the  sovereign  power  in  a state  for  the 
guidance  of  its  subjects.  But,  all  statements  to  the  con- 
trary notwithstanding,  it  is  generally  observed.  A state  here 
and  there  may  sometimes  disregard  one  of  its  plainest  pre- 
cepts ; but  it  does  “ determine  the  conduct  of  the  general  body 
of  civilized  states,”  and  this  is  all  we  assert  in  our  definition. 

§ 4- 

Strictly  speaking,  there  is  not  one  International  Law,  but 
several.  Wherever  a group  of  peoples  are  compelled  by 
international  Law  local  contiguity  or  other  circumstances  to  enter 

applies  to  civilized  . . 

states  only,  though  into  relations  with  each  other,  a set  oi  rules 

it  is  not  confined 

to  Christian  states,  and  customs  is  sure  to  grow  up  among  them, 
and  their  intercourse  will  be  regulated  thereby.  The  rules 
will  differ  at  different  times  and  among  different  groups. 
Their  nature  will  be  determined  by  the  ideas  current  upon 
the  subject  of  international  intercourse  and  the  practices  per- 
missible in  warfare.  In  these  matters  the  notions  of  classical 
antiquity  differ  immensely  from  those  of  modern  Europe, 
and  in  our  own  day  there  is  a great  gulf  fixed  between  the 
views  of  European  and  American  statesmen  on  the  one 
hand  and  those  of  the  potentates  of  Central  Africa  on  the 
other.  But  though  there  are  several  systems  of  International 
Law,  there  is  but  one  important  system,  and  to  it  the  name 
has  been  by  common  consent  appropriated.  It  grew  up  in 
Christian  Europe,  though  some  of  its  roots  may  be  traced 
back  to  ancient  Greece  and  ancient  Rome.  It  has  been 
adopted  in  modern  times  by  all  the  civilized  states  of  the 
earth.  The  nations  of  the  American  continent  are  bound  by 
it  no  less  than  the  powers  of  Europe.  We  have,  therefore, 


THE  DEFINITION  OF  INTERNATIONAL  LAW. 


5 


in  our  definition,  spoken  of  it  as  “ the  rules  which  determine 
the  conduct  of  the  general  body  of  civilized  states.”  But 
we  have  not  thought  fit  to  follow  the  example  of  some 
writers,  and  limit  it  still  further  to  Christian  states.1  It  is 
quite  true  that  modern  International  Law  grew  up  among 
nations  which  professed  Christianity,  and  that  many  of  its 
chapters  would  have  to  be  very  differently  written  if  Chris- 
tian influences  had  been  absent  from  their  formation.  But 
it  is  also  true  that  more  than  one  non-Christian  state  has 
adopted  the  European  international  code.  Turkey,  for  in- 
stance, and  China  make  formal  profession  of  regulating 
their  conduct  by  it,  and  expect  other  states  to  observe  it  in 
dealing  with  them.  In  the  face  of  such  instances  as  these, 
it  would  be  playing  with  facts  to  restrict  International  Law 
to  Christian  states. 

§ 5. 

We  have  spoken  hitherto  of  the  mutual  intercourse  of 
states  and  the  rules  for  dealing  with  it.  But  a great  part 
of  International  Law  consists  of  rules  for  carry-  International  Law 
ing  on  war,  and  war  cannot  with  propriety  be  o&tatestan" 
termed  international  intercourse.  Yet  if  it  is  hostile!  as*' 
not  intercourse  it  arises  out  of  intercourse ; for  wel1  as  pacific' 
if  states  could  live  an  isolated  life,  though  they  would  never 
be  friendly,  they  would  also  never  quarrel.  Moreover,  civil- 
ized states  have  in  the  course  of  ages  come  to  adopt,  and  in  a 
large  measure  to  keep,  a number  of  most  important  rules  for 
determining  their  conduct  when  at  war,  both  towards  the 
enemy  and  towards  other  powers  not  involved  in  the  quar- 
rel ; and  the  latter,  who  are  termed  neutral,  have  also  to 
observe  special  rules  with  regard  to  the  belligerents.  All 
these  rules  are  parts  of  International  Law ; for  they  guide 
the  conduct  of  states  in  their  relations  with  one  another. 
We  have  endeavored  to  include  them  in  our  definition,  along 
with  the  rules  of  ordinary  pacific  intercourse,  under  the  com- 
1 e.g.  Woolsey,  International  Law , § 5. 


6 


THE  DEFINITION  OF  INTERNATIONAL  LAW. 


International  Law 
includes  the  rules 
of  maritime  cap- 
ture, but  not  the 
rules  for  determin- 
ing1 which  of  two 
conflicting  sys- 
tems of  law  shall 
prevail  in  matters 
of  private  right. 


prehensive  phrase,  “ rules  which  determine  the  conduct  of 
the  general  body  of  civilized  states  in  their  dealings  with  one 
another.” 

§6. 

Matters  belonging  to  the  sphere  of  external  activity  are 
generally  carried  on  between  state  and  state,  or,  to  speak 
with  absolute  precision,  between  government 
and  government.  But  there  are  certain  excep- 
tional cases  where  external  matters  have  to  be 
settled  between  the  government  of  one  state, 
acting  through  its  authorized  agents,  and  pri- 
vate individuals  belonging  to  another  state. 
Thus,  if  in  time  of  war  a subject  of  a neutral  state  attempts 
to  carry  to  one  of  the  belligerents  articles  useful  chiefly  for 
warlike  purposes,  such  as  arms  and  ammunition,  the  other 
belligerent  may  stop  him  on  the  high  seas  or  in  belligerent 
territory,  and  confiscate  all  the  goods  in  question.  In  such 
cases  the  belligerent  state  deals  directly  with  the  neutral 
individual.  It  has  not  to  complain  to  his  government  and 
get  him  restrained  or  punished  by  the  laws  of  his  own  coun- 
try ; but  it  is  allowed  by  International  Law  to  strike  straight 
at  the  offender  and  confiscate  his  property.  We  see,  there- 
fore, that  our  subject  includes  some  of  the  dealings  of  states 
in  matters  of  public  right  and  public  policy  with  subject  indi- 
viduals belonging  to  other  states ; and  it  may  seem  at  first 
sight  as  if  such  cases  were  not  provided  for  in  the  definition 
we  have  adopted.  But  this  is  a mistaken  view.  The  neu- 
tral individual  whose  contraband  cargo  is  confiscated  suffers 
under  a rule  to  which  his  government  has  given  express  or 
tacit  consent,  and  if  any  other  rule  is  applied  it  will  at  once 
protest  and  demand  compensation  for  the  injury  done  to  its 
subject.  It  is  only  the  procedure  which  applies  in  the  first 
instance  to  a private  person.  The  rules  are  international  in 
the  strictest  sense,  and  moreover  they  deal  with  public  affairs. 
To  continue  the  illustration  with  which  we  began,  the  ques- 


THE  DEFINITION  OF  INTERNATIONAL  LAW. 


7 


tion  whether  or  no  a belligerent  state  should  have  the  right 
to  stop  trade  between  its  enemy  and  neutrals  in  articles 
directly  useful  for  war,  is  a most  important  question  of 
public  policy,  and  is  settled  by  the  code  which  the  great 
society  of  independent  and  civilized  states  has  adopted  for 
the  regulation  of  the  conduct  of  its  members  towards  each 
other.  The  fact  that  it'  is  found  convenient  to  allow  the 
belligerent  to  deal  first  with  the  offending  individual  and  his 
property,  does  not  deprive  the  matter  of  its  international 
quality.  It  belongs  to  the  sphere  of  the  mutual  dealings  of 
civilized  states.  But  the  same  statement  can  hardly  be  made 
concerning  those  questions  of  private  right  which  arise  owing 
to  differences  in  the  rules  laid  down  by  states  for  the  regula- 
tion of  such  matters  as  contracts,  wills,  and  intestate  suc- 
cession. When  a man  dies  intestate  in  one  state  leaving 
property  in  another,  or  makes  a contract  in  one  state  to  be 
performed  in  another,  tribunals  have  to  decide  whether  the 
law  of  the  former  state  or  the  law  of  the  latter  shall  prevail 
in  the  common  case  of  a difference  between  them.  There 
are  many  other  questions  of  the  like  kind  in  which  a conflict 
between  two  or  more  systems  of  law  has  to  be  settled,  and  in 
the  course  of  time  a large  number  of  rules  have  grown  up 
for  their  settlement.  These  rules  are  adopted  and  adminis- 
tered by  the  courts  of  most  civilized  states,  and  are  some- 
times called  Private  International  Law.  But  the  title  is  a 
misnomer.  The  rules  in  question  cannot  with  propriety  be 
called  international.1  They  deal  with  internal  and  private 
matters.  A state  can  forbid  its  tribunals  to  enforce  any  of 
them  without  committing  an  offence  against  the  law  of 
nations.  The  branch  of  jurisprudence  which  deals  with 
them  was  properly  termed  by  Judge  Story,  one  of  the  great- 
est of  its  expounders,  The  Conflict  of  Laws;  and  we  shall 
not  attempt  to  consider  it  under  any  of  the  chapters  of  the 
international  code.  It  is,  however,  necessary  to  add  that 
when  we  come  to  formulate  a state’s  Rights  of  Jurisdiction, 
1 Holland,  Jurisprudence , 286-288. 


8 


THE  DEFINITION  OF  INTERNATIONAL  LAW. 


we  shall  have  to  define  the  limits  of  its  authority  over  cases 
such  as  we  have  just  described.  But  it  is  possible  to  do  this 
without  entering  upon  a discussion  of  the  minute  and  highly 
technical  rules  which  are  administered  by  courts  in  deciding 
matters  of  private  right  where  the  law  of  one  country  con- 
flicts with  the  law  of  another. 


§7. 

The  name  International  Laiv  is  much  more  modern  than 
the  system  to  which  it  is  applied.  Facts  and  theories  as  to 
the  origin  and  basis  of  our  science  have  been 

The  history  of  the  _ . , 

names  given  to  reflected  in  its  nomenclature.  A great  number 

the  science.  r5  . 

ot  its  precepts  and  many  of  its  diplomatic  forms 
were  derived  from  Roman  Law,  directly  by  civilians  or  indi- 
rectly by  canonists,  and  accordingly  it  was  sometimes  entitled 
Civil  Law  (Jus  Civile).  Bishop  Ridley,  as  Visitor  of  the  Uni- 
versity of  Cambridge  in  the  reign  of  Edward  VI.,  declared  in 
a speech  to  that  learned  body,  “We  are  sure  you  are  not 
ignorant  how  necessary  a study  that  study  of  Civil  Law  is 
to  all  treaties  with  foreign  princes  and  strangers.” 1 And 
about  a century  and  a half  afterwards  Locke,  in  his  work  on 
Education,  wrote  this  quaint  and  significant  passage,  “ A vir- 
tuous and  well-behaved  young  man,  who  is  well  versed  in  the 
general  part  of  the  Civil  Law  (which  concerns  not  the  chi- 
cane of  private  cases,  but  the  affairs  and  intercourse  of  civil- 
ized nations  in  general,  grounded  upon  principles  of  reason), 
understands  Latin  well,  and  can  write  a good  hand,  one  may 
turn  loose  into  the  world  with  great  assurance  that  he  will 
find  employment  and  esteem  everywhere.”  Meanwhile  other 
influences  had  made  themselves  felt.  The  Puritan  idea  that 
the  Bible  contained  a complete  code  of  conduct  applicable  to 
all  possible  conditions  caused  such  works  to  be  written  as  Rich- 
ard Bernard’s  The  Bible  battels , or  the  sacred  art  military;  for 

1 Nys,  L'Histoire  Litteraire  et  Dogmatique  du  Droit  International  en 
Angleterre,  27. 


THE  DEFINITION  OF  INTERNATIONAL  LAW. 


9 


the  rightly  ivageing  of  warre  according  to  the  Holy  Writ.  This 
was  published  in  1629,  four  years  after  the  epoch-making 
work  of  Hugo  Grotius,  De  Jure  Belli  ac  Pads , had  appeared 
at  Paris.  Pufendorf,  the  great  disciple  of  Grotius,  published 
in  1672  his  De  Jure  Naturae  et  Grentium , the  title  of  which 
bore  witness  to  the  influence  exercised  on  our  subject  by  the 
theory  of  a Law  and  a State  of  Nature.  Similar  evidence  is 
afforded  by  the  names  bestowed  upon  their  works  by  many 
of  the  great  publicists  of  the  last  century.  But  after  the 
publication  by  Vattel  in  1758  of  his  Droit  des  Gens , the 
phrase  Law  of  Nations  was  generally  used  to  indicate  the  in- 
ternational code.  Its  capital  defect  as  a name  was  the  fact 
that  it  exactly  translated  the  Latin  Jus  Gentium , and  thus 
lent  color  to  the  erroneous  fancy  that  a large  and  important 
department  of  the  law  of  ancient  Rome  was  concerned  with 
the  mutual  rights  and  duties  of  independent  states.  The 
great  English  jurist,  Jeremy  Bentham,  put  an  end  to  the 
difficulty  by  coining,  in  1780,  the  phrase  International  Law J 
It  was  a translation  of  part  of  the  title  of  a work  by  Dr. 
Zouch,  who  was  Judge  of  the  English  Court  of  Admiralty  in 
the  reign  of  Charles  I.  and  author  of  a book  entitled  De  Jure 
Feciali , sive  Judicio  inter  Gentes.  The  phrase  Judicium  inter 
Gentes , happily  anglicized  into  International  Law , set  forth 
with  admirable  brevity  and  clearness  the  distinguishing  char- 
acteristic of  our  science.  It  deals  with  the  relations  of  states 
to  one  another.  Its  rules  refer  to  the  affairs  which  arise 
between  them.  No  better  name  than  International  Law 
could  be  found  for  it.  Nearly  all  modern  writers  have 
adopted  the  phrase ; and  there  is  little  chance  of  its  being 
superseded  by  any  other  title. 

1 Principles  of  Morals  and  Legislation,  XIX.,  § xxv. 


CHAPTER  II. 


THE  NATURE  OF  INTERNATIONAL  LAW. 


The  two  problems : 
(1)  Is  Interna- 
tional Law  really 
Law  ? (2)  Are  its 
principles  and 
rules  derived  from 
intuition  or  experi- 
ence ? 


§8- 

In  discussing  the  nature  of  our  science,  we  find  ourselves 
confronted  by  two  great  questions.  We  have  first  to  con- 
sider whether  International  Law  is,  properly 
speaking,  law  at  all.  And  in  the  second  place, 
we  must  settle  for  ourselves  the  problem  of  the 
origin  and  essential  character  of  the  rules  we 
study.  Can  they  be  deduced  from  principles 
of  universal  authority,  which  every  man  of  sense  discovers 
for  himself  by  the  exercise  of  his  reason,  but  which  exist  in- 
dependently of  human  arrangements  and  human  rules  ? Or 
must  they  be  generalized  from  the  practice  of  states  in  their 
dealings  with  one  another?  In  other  words,  are  the  methods 
of  International  Law  transcendental  and  a priori,  or  are 
they  historical,  inductive,  and  classificatory  ? We  will  deal 
with  these  two  questions  in  the  order  in  which  we  have 
stated  them. 

§9. 

The  controversy  with  regard  to  the  first  question  dates 
from  the  publication  of  Austin’s  great  work  on  Jurisprudence 
. ..  . in  1832.  He  defined  Law  in  its  widest  sense  as 
excludes" i n t Jr n a"-  “ A rule  laid  down  for  the  guidance  of  an  in- 

tionai  Law.  telligent  being  by  an  intelligent  being  having 

power  over  him.”  1 This  definition,  read  in  the  light  of  the 

1 Austin,  Lectures  on  Jurisprudence,  I. 

10 


THE  NATURE  OF  INTERNATIONAL  LAW. 


11 


explanations  of  its  author,  requires  that  any  precept  con- 
cerning conduct  shall,  before  it  can  properly  be  termed 
a law,  (a)  command  not  an  isolated  act  or  forbearance, 
but  a course  of  conduct ; (6)  proceed  from  an  individual  or 
body  of  individuals  who  have  the  intelligence  to  conceive 
and  the  power  to  express  a wish  with  regard  to  the  conduct 
of  other  intelligent  beings ; ( c ) be  enforced  by  the  fear  of 
evil  to  flow  from  its  authors  and  fall  upon  those  to  whom  it 
is  set  in  case  they  disobey  it.  If  an  individual  possessing 
on  the  one  hand  intelligence,  and  on  the  other  hand  power 
to  inflict  punishment,  issues  a general  command  to  any  one 
over  whom  he  can  exercise  his  power,  that  command  is  a law 
and  the  person  who  issues  it  is  a legislator.  But  laws  are 
more  often  made  by  a number  of  men  acting  in  concert  than 
by  one  man  acting  alone.  If  such  a body  possesses  corpo- 
rate intelligence  and  corporate  volition,  — if,  that  is  to  say,  it 
is  a determinate  body,  all  of  whose  members  can  be  known,  a 
body  capable  of  thinking,  willing,  and  acting  as  a whole,  — 
then  it  can  set  a law,  provided  that  it  is  able  to  make  those  who 
disobey  it  suffer  some  predetermined  penalty.  This  penalty 
is  called  a sanction ; and  the  three  essential  elements  in  any 
law  are  the  Command  issued  to  those  who  are  expected  to 
obey  it,  the  Obligation  resting  on  them  to  obey  it,  and  the  evil, 
or  Sanction , to  fall  upon  them  in  case  they  do  not  obey  it. 

The  Austinian  argument  goes  on  to  state  that  rulers  of 
political  communities,  whether  individuals  or  bodies,  are  the 
great  earthly  legislators.  They  wield  the  stored-up  force  of 
the  community,  and  can  make  their  commands  obeyed  with 
far  greater  facility  and  over  far  larger  areas  than  ordinary 
individuals.  The  law  they  set  is  called  Positive  Law,  in 
order  to  distinguish  it  on  the  one  hand  from  Divine  Law , 
and  on  the  other  from  those  precepts  which  men  obey, 
though  they  are  not  set  directly  or  indirectly  by  political 
superiors,  and  which  are  called  Positive  Morality.  Of  the 
precepts  of  Positive  Morality,  some  are  law  proper,  and  some 
are  not.  Those  that  have  a determinate  author  and  are 


12 


THE  NATURE  OP  INTERNATIONAL  LAW. 


armed  with  a definite  sanctiop,  are  really  laws.  Those  that 
are  set  merely  by  general  opinion  are  not  laws.  Their 
authors  are  an  indeterminate  body ; and  though  it  is  possible 
that  those  who  disobey  them  will  be  made  in  some  way  to 
suffer  in  consequence  of  their  disobedience,  yet  there  is  no 
clearly  defined  penalty  denounced  beforehand  against  the 
disobedient.  This  class  of  precepts  comprises  most  of  the 
customary  rules  observed  among  mankind.  The  laws  of 
fashion,  the  rules  of  politeness,  the  generally  observed  con- 
ventions as  to  propriety  of  conduct,  are  obviously  included 
within  it.  International  Law  does  not  at  first  sight  seem  to 
bear  much  resemblance  to  these.  Yet,  according  to  Austin,  it 
is  properly  classed  along  with  them ; for  it  is  set  to  govern- 
ments and  nations,  not  by  any  common  superior  armed  with 
power  to  enforce  obedience,  but  by  the  public  opinion  of 
civilized  states  ; and  in  case  of  disobedience,  no  definite  punish- 
ment is  authoritatively  denounced  against  the  offender,  though 
in  all  probability  some  other  state  or  states  will  bring  some 
evil  to  bear  upon  it  in  consequence  of  the  offence. 

§10. 

It  never  seems  to  have  occurred  to  Austin  that  any  defini- 
tion of  law  other  than  his  own  could  be  constructed  with  the 
....  . slightest  approach  to  scientific  accuracy.  But 

only11  in  "a  complex  i*1  truth,  his  results  are  obtained  by  seizing 
conception.  upon  one  element  only  in  the  ordinary  concep- 
tion of  law,  and  elaborating  it  to  the  exclusion  of  all  the 
rest.  It  is  quite  possible  to  take  other  elements  in  the  same 
complex  conception,  and  elaborate  them  with  precision  equal 
to  that  of  the  great  analytical  jurist.  He  gives  prominence 
to  the  idea  of  force.  A law  is  a precept  which  you  can  be 
compelled  to  obey.  He  who  can  bring  evil  upon  you  can  set 
you  a law.  You  are  under  a law  when  you  are  impelled  by 
fear  of  evil  to  observe  another’s  command.  But  it  is  clear 
that  the  idea  of  orderly  and  methodical  procedure  towards  a 


THE  NATURE  OF  INTERNATIONAL  LAW. 


13 


given  end  is  also  part  of  the  usual  notion  of  law.  When 
human  conduct  is  controlled  by  no  principles,  when  we  dis- 
cover no  consistent  rule  of  action,  when  restraining  power 
is  absent  and  all  is  irregular  and  chaotic,  we  at  once  de- 
scribe such  a life  as  lawless.  Now  we  can  surely  make  this 
notion  of  order  and  restraint  the  pivot  of  our  definition  of 
law,  with  just  as  much  accuracy  as  Austin  makes  his  defini- 
tion turn  upon  the  notion  of  superior  force.  For  in  truth, 
the  idea  of  law  contains  so  many  elements,  that  no  definition 
could  include  them  all ; and  it  is  absolutely  necessary  to  take 
a portion  only  of  the  conception  and  treat  it  for  the  purposes 
of  definition  as  if  it  were  the  whole.  A similar  method  has 
sometimes  to  be  followed  in  other  sciences.  The  economist, 
for  instance,  constructs  a theory  of  exchanges  based  upon 
the  tacit  assumption  that  men  are  actuated  by  the  desire  of 
gain.  But  he  knows  that  in  practice  other  motives  are  at 
work.  Habit,  love  of  ease,  the  desire  to  do  a neighbor  a 
good  turn,  the  wish  to  benefit  persons  of  a particular  way 
of  thinking,  a feeling  in  favor  of  social  justice,  and  count- 
less other  considerations,  act  upon  people  even  in  their  com- 
mercial transactions.  But  it  would  be  absolutely  impossible 
to  calculate  beforehand  the  force  of  all  these  motives.  The 
student  of  the  mechanism  of  exchange,  therefore,  seizes  upon 
that  which  is  the  most  prominent,  and  powerful,  and  uni- 
versal of  all  that  operate  in  matters  of  trade.  He  calculates 
as  if  it  were  the  only  one  ; and  then  proclaims  that  in  prac- 
tice allowance  must  be  made  for  others,  because  their  effect 
is  to  modify,  in  a greater  or  less  degree,  the  results  that 
would  have  occurred  had  the  main  motive  been  the  only 
one.1  In  the  same  way  the  jurist  should  understand  that  in 
constructing  a definition  of  Law  he  must  be  content  to  take 
a few  of  the  most  prominent  features  in  a very  complex 
notion,  and  should  admit  that  the  classifications  based  upon 
his  definition  cannot  represent  with  absolute  accuracy  the 
ordinary  ideas  of  mankind. 

1 Cf.  Maine,  Early  Institutions,  Lecture  XII. 


14 


THE  NATURE  OE  INTERNATIONAL  LAW. 


§ n- 

But  there  is  a peculiarity  about  the  notion  of  Law  which 
renders  it  almost  impossible  to  define  the  thing  so  as  to  com- 
Ti.  ...  . man d universal  assent.  No  one  element  in  the 

It  is  possible  to 

ofLaw  turn  upon  n°ti°n  is  s0  prominent  that  all  the  others  are 
instea^ofthe^dea  small  in  comparison  with  it.  At  one  time  we 
is  do'ne  interna-h's  seem  instinctively  to  consider  a law  as  the  com- 
kTthe  strictest'1""  maud  of  a superior,  at  another  as  the  regulator 
of  conduct,  at  a third  as  that  which  compels  the 
unwilling  to  comply  in  outward  act  at  least  with  the  rudi- 
mentary precepts  of  righteousness,  at  a fourth  simply  as  the 
producer  of  uniformity,  and  at  a fifth  as  a command  proceed- 
ing from  properly  constituted  authority.  Now  it  is  difficult 
to  say  which  of  these  ideas  should  be. worked  into  a defini- 
tion of  Law  to  the  exclusion  of  the  others  ; and  yet  it  is  clearly 
impossible  to  include  them  all  if  we  would  avoid  inextricable 
confusion.  The  first  two  are  certainly  the  most  important, 
and  writers  on  Jurisprudence  generally  take  one  or  the  other 
of  them  as  the  starting-point  of  their  speculations.  Austin 
has  worked  out  in  detail  the  conception  of  Law  as  the  com- 
mand of  a superior,  and  has  based  upon  it  an  important  and 
accurate  classification  of  the  different  kinds  of  rules  observed 
among  men.  Others,  of  whom  perhaps  Richard  Hooker,  the 
great  Elizabethan  divine,  may  be  taken  as  the  best  represent- 
ative, have  adopted  as  their  fundamental  idea  with  regard 
to  law  the  notion  that  it  is  that  which  regulates  conduct. 
Hooker,  in  the  first  book  of  his  Ecclesiastical  Polity,  when 
speaking  of  those  who  had  anticipated  by  more  than  two  cen- 
turies the  fundamental  doctrine  of  Austin,  says : “ They 
. . . apply  the  name  of  Law  to  that  only  rule  of  working 
which  superior  authority  imposeth ; whereas  we,  somewhat 
more  enlarging  the  sense  thereof,  term  any  rule  or  canon, 
whereby  actions  are  framed,  a law Hooker  does  not  work 
out  his  fundamental  conception  with  the  scientific  precision 
of  Austin ; but  with  a few  alterations  and  improvements  his 


THE  NATURE  OF  INTERNATIONAL  LAW. 


15 


classification,  of  the  various  kinds  of  rules  might  be  made  as 
accurate  as  that  of  the  later  jurist.  Each  would  be  impreg- 
nable to  criticism,  if  once  its  fundamental  principle  were 
granted.  Both  principles  are  involved  in  the  complex  con- 
ception of  law.  Both  definitions  of  law  are  the  results  of 
abstraction.  That  is  to  say,  they  are  obtained  by  withdraw- 
ing attention  from  all  other  portions  of  the  notion  and  con- 
centrating it  upon  the  one  portion  which  is  deemed  most 
important.  The  only  question  for  argument  is,  Which  of  the 
two  ideas  is  the  key  to  the  greatest  number  of  distinctions 
between  various  kinds  of  rules,  which  can  be  made  the  basis 
of  the  classification  most  convenient  for  the  purposes  of 
daily  life  and  most  fruitful  of  results  in  the  field  of  juristical 
research?  Any  attempt  to  answer  this  question  would  be 
foreign  to  our  present  purpose.  It  will  be  sufficient  to  point 
out  here  that  Hooker’s  definition  of  Law  as  “ any  rule  or 
canon  whereby  actions  are  framed  ” 1 clearly  included  Inter- 
national Law,  since  that  law  is  a collection  of  rules  for  the 
guidance  of  human  conduct  in  one  of  its  most  important 
spheres  of  activity.  Austin,  as  we  have  seen,  denies  the 
term  Law  to  the  rules  which  govern  the  mutual  intercourse 
of  states.  International  Law  is,  therefore,  properly  called 
Law  if  we  take  one  definition,  improperly  so  called  if  we 
take  another  definition.  But  since  the  common  consent  of 
writers  upon  the  subject  gives  it  the  disputed  title,  we  need 
not  hesitate  to  adopt  the  name  without  making  an  attempt 
to  solve  the  difficult  question  of  its  perfect  accuracy.  We 
shall  use  the  phrase  International  Law  as  a clearly  defined 
term  with  a technical  meaning  useful  for  our  present  pur- 
pose. In  the  preceding  chapter  we  endeavored  to  draw  out 
step  by  step  its  full  signification.  In  this  chapter  we  have 
tried  to  show  that  the  word  Laiv  can  be,  and  has  been,  so 
defined  as  to  make  its  use  in  connection  with  the  rules  that 
purport  to  govern  the  intercourse  of  states  perfectly  legiti- 
mate. To  go  further  would  involve  entering  upon  a long 
1 Ecclesiastical  Polity , I.,  III.,  i. 


16 


THE  NATURE  OF  INTERNATIONAL  LAW. 


controversy  more  fit  for  a work  on  Jurisprudence  than  for 
one  on  International  Law.1  Usage  is  on  our  side,  and  there 
is  no  valid  reason  why  we  should  disregard  it.  Indeed,  we 
shall  not  only  speak  of  International  Law,  but  of  Interna- 
tional Morality  also,  meaning  by  the  former  phrase  rules 
which  states  have  expressly  or  tacitly  consented  to  observe, 
and  by  the  latter  rules  which  in  our  view  they  ought  to 
observe.  Thus  in  passing  judgment  upon  the  conduct  of  a 
state  on  a given  occasion,  we  shall  be  able  to  say  it  was  both 
legal  and  moral,  or  it  was  legal  but  not  moral,  or  it  was 
moral  but  not  legal,  or  it  was  neither  moral  nor  legal.  And, 
as  if  there  was  not  in  these  statements  a sufficient  wealth  of 
alternatives,  the  writings  of  publicists  provide  us  with  yet 
another.  They  speak  of  the  Comity  of  Nations,  meaning 
thereby  those  rules  of  courtesy  which  states  sometimes  accord 
to  one  another  though  not  bound  to  do  so  by  the  accepted 
international  code.  We  have  to  add,  therefore,  to  Interna- 
tional Law  and  International  Morality,  International  Comity 
also.  A state-act  may  be  legal,  moral,  courteous,  or  any  com- 
bination of  these  three. 

§12. 


The  next  subject  to  be  discussed  is  far  more  important. 
It  matters  very  little  whether  we  call  International  Law  by 
importance  of  the  name,  or  by  one  somewhat  different,  as  long 

international  Law  as  both  names  signify  the  same  thing;  but  it 
f priori  wthT  matters  a great  deal  whether  we  regard  it  as  an 
historical  method.  a ^r{or{  inquiry  into  what  the  rules  of  interna- 
tional intercourse  ought  to  be,  or  an  historical  investigation 
of  what  they  are.  Our  conception  of  the  science  as  a whole, 
and  our  treatment  of  it,  both  in  principle  and  in  detail,  must  be 
determined  by  the  views  we  hold  upon  this  great  question  ; 
and  it  will  be  well,  therefore,  if  we  make  them  as  clear  as 
possible.  Confused  notions  upon  this  point  have  been,  and 

1 See  the  author’s  paper  on  the  subject  in  his  Essays  on  Some  Disputed 
Questions  in  Modern  International  Law. 


THE  NATURE  OP  INTERNATIONAL  LAW. 


17 


still  are,  at  the  bottom  of  countless  obscurities  in  the  writing 
of  publicists,  and  countless  controversies  among  statesmen 
and  jurists. 

§ 13- 

First,  however,  let  us  observe  that  whether  we  approach 
our  science  from  the  ethical  or  the  historical  side  it  will  be 
impossible  to  exclude  from  our  treatment  of  it  Ethical  considera- 
all  considerations  derived  from  the  opposite  excluded Dfrome 
point  of  view.  If  we  hold  that  our  object  is  to  Internat,onal  Law- 
discover  the  principles  and  precepts  of  international  inter- 
course that  are  most  conformable  to  justice  and  humanity, 
we  shall  still  be  obliged  to  take  into  consideration,  from  time 
to  time,  the  actual  practice  of  states,  and  inquire  into  the  rules 
which  they  do  in  fact  observe.  Neither  in  national  nor  in 
individual  affairs  is  it  possible  to  decide  upon  what  ought  to 
be  without;  some  knowledge  of  what  is.  Just  as  moralists,  in 
discussing  the  rules  of  right  applicable  to  private  life,  con- 
stantly allude  to  the  current  habits  and  observances  of  man- 
kind in  such  matters  as  contracts,  marriages,  sales,  and  the 
like,  so  those  jurists  who  adopt  in  the  main  the  view  of  Inter- 
national Law  we  are  now  discussing  are  obliged  to  refer  to 
the  practice  of  states  in  their  mutual  dealings,  and  the  rules 
they  actually  obey.  On  the  other  hand,  those  who  believe 
that  the  method  of  historical  research  is  the  correct  one,  find 
themselves  unable  to  suppress  moral  judgments  upon  the 
facts  they  discover.  It  is  necessary  for  them  to  inquire 
what  the  principles  that  guide  states  in  their  mutual  inter- 
course ought  to  be,  if  their  approval  or  disapproval  is  to  be 
intelligent,  and  if  they  are  to  have  the  slightest  hope  of  in- 
fluencing opinion  in  the  direction  of  their  own  wishes.  Those 
comparatively  few  writers  who  have  regarded  International 
Law  as  an  historical  rather  than  an  ethical  inquiry,  have  not 
been  behind  their  fellows  in  criticisms  and  suggestions  for  its 
improvement.  Thus  we  see  that  the  adoption  of  either  view 
does  not  mean  the  complete  exclusion  of  considerations  drawn 


18 


THE  NATURE  OF  INTERNATIONAL  LAW. 


from  the  other.  We  can  neither  theorize  about  the  ideal 
without  some  reference  to  the  real,  nor  describe  the  real 
without  sometimes  dwelling  upon  the  ideal. 


X 


§14. 


Before  we  proceed  to  the  discussion  of  the  merits  or  de- 
merits of  the  two  methods,  it  is  necessary  to  remark  that  the 
Many  publicists  great  writers  who  founded  modern  International 

confuse  the  ethical  T .....  ..  i , . 

and  the  historical  Law  did  not  draw  any  clear  line  ot  demarcation 

method  in  their  . 

writings.  between  them,  and  many  modern  publicists  have 

imitated  their  intellectual  forefathers  in  this  respect.  Books 
upon  International  Law  generally  proceed  upon  the  assump- 
tion that  it  is  possible  by  reasoning  from  certain  general 
principles,  which  are  far  more  often  assumed  than  proved, 
to  discover  a number  of  absolute  rights  possessed  by  states 
in  virtue  of  their  independent  existence.  These 'rights,  it  is 
asserted,  are  antecedent  to  all  law,  or,  at  any  rate,  to  all  law 
of  human  imposition.  International  Law  recognizes  them, 
but  does  not  create  them.1  But  when  the  writers  who  reason 
thus  come  to  work  out  their  subject,  they  fill  up  all  the  de- 
tails of  their  systems  by  referring  to  the  conduct  of  states 
under  circumstances  that  have  actually  occurred.  Unless, 
therefore,  we  are  prepared  to  believe  that  in  this  particular 
department  of  human  conduct  what  is  and  what  ought  to  be 
coincide  far  more  happily  than  in  any  other,  we  must  hold  that 
the  writers  in  question  confuse  fact  and  theory,  and  only  save 
themselves  from  the  reproach  of  spinning  a web  out  of  their 
own  brains  by  practically  discarding,  through  the  greater 
part  of  their  works,  the  principles  elaborately  set  forth  at  the 
commencement.  In  the  chapter  upon  the  History  of  Inter- 
national Law  an  effort  will  be  made  to  explain  how  this  con- 
fusion arose ; and  we  shall  find  good  ground  for  believing 
that  the  mixed  mode  of  thought  to  which  it  owes  its  origin 

1 e.g.  Hautefeuille,  Droits  des  Nations  Neutres , Discours  Preliminaire, 
VI. -XVIII. 


THE  NATURE  OF  INTERNATIONAL  LAW. 


19 


was  highly  beneficial  in  the  infancy  of  our  science,  though  it 
has  long  ago  ceased  to  be  anything  better  than  a clog  upon 
progress.  For  the  present  it  will  be  sufficient  to  point  out 
that  writers  who  treat  the  subject  in  the  manner  under  con- 
sideration cannot  be  expected  to  distinguish  clearly  between 
the  ethical  and  the  historical  method.  They  mingle  the  two 
in  their  works,  going  unconsciously  backwards  and  forwards 
from  one  point  of  view  to  the  other,  and  too  often  producing 
in  their  readers  a mode  of  thought  as  confused  and  confusing 
as  their  own.  Till  each  conception  has  been  clearly  enun- 
ciated and  sharply  distinguished  from  the  other  it  is  impos- 
sible to  give  an  intelligent  assent  to  either. 

§15. 

We  have  already  gone  through  the  preliminary  stages  of 
defining  and  contrasting  the  rival  conceptions ; and  it  re- 
mains for  us  now  to  decide  which  is  the  cor-  . . . 

States  appeal  in 

rect  one.  If  states  had  a common  superior,  tousageanT*™68 
the  question  would  be  easily  settled.  His  com-  i,recedent- 
mands  would  be  International  Law,  just  as  within  each 
state  the  commands  of  the  individual  or  body  of  individuals 
possessing  sovereign  power  make  up  the  municipal  law  which 
each  member  of  the  community  has  to  obey,  whether  he 
approves  of  it  or  not.  But  there  is  no  central  authority 
supreme  over  all  states,  and  capable  of  inflicting  punishment 
on  those  who  disobey  its  precepts.  The  era  of  universal 
dominion  is  over,  and  independent  states  now  recognize  no 
earthly  superior.  Do  they  then  appeal  in  their  controversies 
to  innate  ideas  of  justice  implanted  in  the  mind  of  the 
human  race  by  its  Creator,  or  to  principles  acknowledged  by 
the  general  opinion  of  statesmen  and  jurists?  — to  precepts 
deduced  from  the  consideration  of  absolute  rights  existing 
antecedent  to  custom  and  law,  or  to  rules  which  can  be 
shown  to  have  been  adopted  by  all  or  most  states  ? A very 
slight  acquaintance  with  the  history  of  international  affairs 


20 


THE  NATURE  OF  INTERNATIONAL  LAW. 


will  teach  us  that  the  latter  alternative  is  the  one  adopted 
with  something  approaching  to  unanimity.  Statesmen  up- 
hold the  cause  for  which  they  are  contending,  by  reference 
to  acknowledged  rules  deduced  from  the  general  practice  of 
states.  They  quote  the  words  of  treaties  and  of  authors 
who  are  universally  regarded  as  authorities.  If  there  are  no 
precedents  exactly  applicable  to  the  matter  in  hand,  they 
endeavor  to  show  that  admitted  principles,  logically  devel- 
oped, lead  to  the  conclusions  they  wish  to  establish.  Very 
seldom  do  we  find  appeals  to  natural  right  or  innate  prin- 
ciples of  justice  and  humanity.  Sometimes  such  considera- 
tions are  used  to  bolster  up  a case  for  which  little  support 
can  be  found  in  acknowledged  principles  or  accepted  rules. 
Their  presence  in  a state  paper  is  a pretty  sure  sign  that 
International  Law  is  hopelessly  against  the  contentions  of 
its  authors.  Speaking  generally  on  a matter  of  fact  which 
is,  and  must  be,  unaffected  by  any  theory  about  International 
Law,  we  may  assert  that  states  appeal  in  their  controversies 
with  other  states  to  usage,  and,  if  usage  is  doubtful,  to  prin- 
ciples that  have  been  adopted  by  all  or  most  civilized  nations. 


16. 


Now  we  may  fairly  argue  that  this  fact  is  decisive  as  to 
both  the  nature  and  the  method  of  International  Law.  If 
_.  , those  who  have  to  conduct  the  external  affairs 

Mstoricafmethod  states  appeal  in  controversies  with  other 
is  the  correct  one.  states,  not  to  such  ideas  of  justice  as  most  com- 
mend themselves  at  the  time  to  the  parties  concerned,  but 
to  a previously  determined  body  of  rules,  we  may  feel  sure 
that  the  mutual  intercourse  of  states  is  governed  by  these 
rules,  and  that  they  are  the  subject  matter  of  International 
Law.  It  is,  therefore,  an  inquiry  into  what  is,  not  into 
what  ought  to  be.  And  its  method  must  of  necessity  be 
historical,  since  statesmen  discover  what  rules  to  apply  to 
particular  cases  by  an  inquiry  into  the  history  of  previous 


THE  NATURE  OF  INTERNATIONAL  LAW. 


21 


cases.  That  these  truths  have  not  been  more  generally  rec- 
ognized is  probably  due  to  the  circumstance  that  the  writers 
of  books  on  International  Law  have  very  seldom  been  states- 
men or  diplomatists.  There  are  of  course  exceptions.  The 
names  of  Hugo  Grotius,  Henry  Wheaton,  and  Carlos  Calvo 
will  at  once  occur  as  those  of  men  who  have  been  distin- 
guished both  as  statesmen  and  as  publicists ; but,  as  a general 
rule,  one  set  of  men  administer  International  Law,  and 
another  set  of  men  write  about  it,  whereas  the  writers  on 
other  branches  of  law  are  almost  invariably  men  engaged  in 
the  practical  application  of  the  rules  they  lay  down.  But, 
though  this  peculiarity  has  no  doubt  tended  to  keep  up  the 
confusion  between  speculation  and  fact,  it  has  also  had  a good 
effect.  But  for  it  there  would  probably  have  been  far  less  of 
scientific  method  in  the  study  than  there  is.  Statesmen  and 
diplomatists  are  so  occupied  with  the  questions  of  the 
moment  that  they  lose  the  power  of  looking  at  rules,  not  as 
isolated  units,  but  as  parts  of  one  great  system.  Now,  a 
writer  on  International  Law  not  only  has  to  discover  and 
express  with  precision  the  rules  which  states  observe  in 
their  mutual  intercourse,  but  he  has  also  to  classify  these 
rules  under  various  heads,  to  show  that  they  are  deduced 
from  acknowledged  principles,  and  to  point  out  how  these 
principles  sometimes  qualify  one  another.  It  is  hardly  too 
much  to  say  that  the  habits  of  mind  of  an  ordinary  statesman 
disqualify  him  for  performing  the  latter  of  these  two  func- 
tions as  much  as  they  fit  him  for  performing  the  former. 
Exactly  the  converse  is  true  of  ordinary  publicists.  They 
have  systematized  details,  but  have  too  often  evolved  rules 
and  principles  from  the  recesses  of  their  own  consciousness. 
The  modern  writer  on  International  Law  should  thankfully 
acknowledge  his  obligations  to  his  predecessors  in  point  of 
systematic  arrangement,  while  he  endeavors  to  make  clear 
what  is  obscure  in  their  views  of  the  nature  and  method  of 
the  science. 


22 


THE  NATURE  OF  INTERNATIONAL  LAW. 


§ 17. 

We  have  arrived  at  the  conclusion  that  the  method  of 
International  Law  is  historical  rather  than  ethical,  on  the 
T]ie  conclusion  in  gr°und  that  those  who  have  to  administer  its 
toricai°  inethod's'is  rules  determine  them  mainly  by  a reference  to 
t^afsence  of y precedent  and  usage.  But  there  are  other  con- 
al to  theabas?™ofnt  sideratious  which  may  be  urged  in  support  of 
the  same  position.  While  ethical  science  re- 
mains in  its  present  condition  there  is  no  hope  of  a general 
agreement  as  to  the  nature  of  its  standards  and  the  mode  of 
determining  them.  The  existence  of  some  of  them  is  denied, 
and,  in  spite  of  eclectic  tendencies,  the  intuitional  and  utili- 
tarian schools  are  as  far  apart  as  ever.  If  it  were  necessary 
to  determine  the  rights  of  states  by  reference  to  Moral  Phi- 
losophy, publicists  would  give  different  versions  of  them 
according  as  they  differed  in  their  views  of  the  fundamental 
questions  of  Ethics,  and  we  should  have  almost  as  many  sys- 
tems of  International  Law  as  we  have  writers  upon  the  subject. 
It  is  true  that  most  of  the  great  publicists  have  endeavored 
to  determine  the  rights  and  duties  of  states  according  to 
principles  which  seemed  to  them  just  and  righteous  and  con- 
sistent with  human  nature  at  its  best,  and  nevertheless  they 
have  given  us  one  tolerably  uniform  system  and  not  scores 
of  conflicting  systems.  But  their  agreement  in  detail  does 
not  arise  from  a similar  agreement  in  principle.  It  is  the 
result  of  a common  neglect  to  work  out  with  logical  precision 
the  principles  on  which  they  based  their  systems.  As  we 
have  stated  before,  they  refer  to  usage,  and  argue  from  the 
common  consent  of  nations,  while  they  more  or  less  con- 
sciously imagine  they  are  working  out  a theory  of  absolute 
right.  As  long  as  there  are  on  the  one  hand  a number  of 
conflicting  notions  of  what  the  rights  and  duties  of  states 
ought  to  be,  and  on  the  other  hand  a tolerably  well-defined 
body  of  principles  by  which  states  guide  their  conduct, .Inter- 
national Law  must  be  founded  on  the  latter,  and  not  on  the 


THE  NATURE  OE  INTERNATIONAL  LAW. 


23 


former.  The  principles  and  the  rules  based  upon  them  may- 
be morally  good  or  morally  bad ; but  they  determine  the  con- 
duct of  governments  in  relation  to  one  another,  they  define 
the  rights  of  states  and  set  forth  their  obligations,  and  there- 
fore they,  and  they  alone,  are  International  Law.  To  argue 
otherwise  would  be  to  blend  the  ideal  with  the  real,  to  con- 
fuse what  ought  to  be  with  what  is,  and  to  turn  moral  right- 
ness into  legal  right. 

§18. 

But  while  we  shun  altogether  any  such  confusion,  and  hold 
those  rules  to  be  International  Law  which  states  do  actually 
observe,  without  regard  to  their  goodness  or  Xhe  piace  of etm- 
badness,  we  do  not  imagine  that  the  moral  fn'inter'nationa”3 
quality  of  these  rules  is  a matter  of  indifference,  Law- 
or  believe  that  writers  on  public  law  need  not  trouble  them- 
selves about  it.  All  we  contend  for  is  that  the  question 
what  are  the  rules  of  International  Law  on  a given  subject 
and  the  question  whether  they  are  good  or  bad  should  be 
kept  distinct.  They  differ  in  their  nature  and  in  their 
method  of  solution,  and  nothing  but  harm  can  come  of  any 
attempt  to  unite  them.  Yet  it  is  the  duty  of  publicists  to 
put  ethical  considerations  prominently  forward  in  many 
parts  of  their  work.  Even  in  a book  on  some  portion  of 
ordinary  Municipal  Law,  we  should  expect  to  find  expressions 
of  opinion  upon  various  rules,  the  justice  of  which  was  dis- 
puted among  those  competent  to  form  a judgment.  The 
writer,  for  instance,  of  an  account  of  the  English  Criminal 
Law  might  hold  strongly  that  it  was  still  unjust  to  women 
in  some  of  its  provisions,  and  he  would  probably  enforce  his 
view  by  argument  when  he  came  to  deal  with  those  portions 
of  his  subject.  Now,  if  no  reasonable  objection  can  be  taken 
to  such  a course,  it  cannot  be  doubted  that  the  publicist  is 
justified  in  suggesting,  on  moral  grounds,  alterations  in  Inter- 
national Law  where  he  deems  it  open  to  objection,  provided 
always  that  he  does  not  proceed  to  regard  as  law  the  new 


24 


THE  NATURE  OF  INTERNATIONAL  LAW. 


rule  he  has  suggested,  because  he  believes  he  has  proved  it 
to  be  much  superior  to  the  old.  But  in  addition  to  cases  of 
change  and  reform,  there  are  other  cases  which  must  be  dealt 
with  on  ethical  grounds.  If  a point  of  Municipal  Law  is 
doubtful,  men  resort  to  a supreme  legislature  for  an  inter- 
preting statute ; but  if  a point  of  International  Law  is  doubt- 
ful, they  can  only  resort  to  general  reasoning  for  a convincing 
argument,  unless,  indeed,  they  settle  the  question  by  blows. 
He  who  in  such  a case  bases  his  reasoning  on  high  considera- 
tions of  morality  may  succeed  in  resolving  the  doubt  in 
accordance  with  humanity  and  justice.  International  Law 
in  many  of  its  details  is  peculiarly  liable  to  disputes  and 
doubts,  because  it  is  based  upon  usage  and  opinion.  Some- 
times there  are  two  or  more  diverse  usages,  each  supported 
by  a considerable  number  of  precedents,  and  each  backed  up 
by  a respectable  body  of  opinion.  Sometimes  a new  question 
arises,  unlike  in  many  respects  any  that  have  occurred  before. 
No  precedents  exactly  fit  it,  and  among  recognized  princi- 
ples there  is  more  than  one  from  which  a rule  to  settle  the 
dispute  might  be  deduced.  Indeed,  our  science  progresses 
by  reason  of  the  rise  of  these  doubtful  points.  After  they 
have  been  discussed,  debated,  and  perhaps  fought  over, 
for  many  years,  a clear  and  consistent  body  of  usage  with 
regard  to  them  emerges  from  the  confusion,  and  a new 
collection  of  rules  is  added  to  International  Law.  The 
controversies  of  one  generation  produce  the  undoubted  law 
of  the  next ; and  meanwhile  a fresh  series  of  difficulties  has 
arisen,  which  in  its  turn  will  give  birth  to  a new  chapter  of 
accepted  law.  There  is  great  scope  for  argument  in  the 
settlement  of  these  controversies ; and  ethical  principles 
should  be  put  prominently  forward  by  all  writers  who  deal 
with  them.  Nations  are  sure  not  to  forget  considerations 
of  self-interest ; but  the  publicist  should  rise  above  national 
prejudice,  and  endeavor  so  to  use  his  influence  as  to  make 
the  system  he  expounds  at  the  same  time  more  scientific  and 
more  just. 


THE  NATURE  OF  INTERNATIONAL  LAW. 


25 


§19. 

We  are  now  in  a condition  to  sum  up  the  results  of  a long 
and  somewhat  intricate  chain  of  reasoning.  Briefly,  they 
are  these.  The  controversy  as  to  whether  the 
term  Law  is  properly  applied  to  the  rules  of  resui™aam?ved  at 

, . j,  in  this  chapter. 

international  conduct,  is  a mere  logomachy,  lx 
we  follow  Austin  and  hold  that  all  laws  are  commands  of 
superiors,  International  Law  is  improperly  so  called.  If  we 
follow  Hooker  and  hold  that  whatever  precepts  regulate  con- 
duct are  laws,  International  Law  is  properly  so  called.  But 
since  almost  all  writers  apply  the  term  Law  to  the  rules  which 
guide  states  in  their  mutual  intercourse,  it  seems  best  to 
adopt  it,  on  the  clear  understanding  that  the  word  is  used 
in  Hooker’s  sense.  International  Law  proceeds  first  by 
the  method  of  inquiry  into  the  practices  of  states  in  their 
dealings  with  each  other  and  into  the  acknowledged  prin- 
ciples on  which  those  practices  are  based.  Having  discovered 
what  they  are,  it  has  next  to  classify  them,  derive  rules  from 
them,  and  reduce  them  to  system.  Incidentally,  however,  it 
deals  with  the  question  of  what  the  rules  ought  to  be,  when- 
ever a change  is  felt  to  be  desirable,  or  a doubt  has  to  be 
resolved.  A writer  on  International  Law,  therefore,  must 
cease  to  rely  exclusively  upon  the  method  of  observation  and 
classification  when  he  wishes  to  clear  up  a doubtful  point  or 
bring  about  a needful  reform.  For  a moment  his  science 
ceases  to  be  inductive,  and  he  flies  to  general  reasoning,  know- 
ing that  if  he  convinces  all  concerned,  he  ijpso  facto  resolves 
the  doubt  or  changes  the  law.  He  does  not  set  a sovereign 
legislature  in  motion : in  a sense  he  himself  legislates ; for  he 
controls  the  opinion  that  is  really  supreme.  And  this  he  does 
without  deserting  the  positive  method  and  confounding  the 
ideal  with  the  real.  A rule  may  in  time  become  a part  of 
International  Law,  owing  to  the  cogency  of  his  arguments ; 
but  he  must  not  say  it  is  law  until  it  has  met  with  general 
acceptance  and  been  incorporated  into  the  usages  of  states. 


CHAPTER  III. 


THE  HISTORY  OP  INTERNATIONAL  LAW. 

§20. 

By  common  consent  International  Law  is  concerned  with 
the  usages  of  civilized  powers.  Its  history  is  the  history 
of  that  system  of  rules  for  the  guidance  of 

The  history  of  ....  . 

international  Law  states  in  their  external  relations,  which  has 

goes  back  to 

ancient  Greece  sprung  up  among  the  nations  of  Europe  and 

and  Rome.  It  r r ° r 

divides  into  three  extended  itself  to  all  civilized  communities  out- 

periods. 

side  the  European  boundaries.  This  system, 
in  many  of  its  most  important  parts,  is  the  growth  of 
modern  times.  Its  fundamental  principles  are  barely  three 
hundred  years  old.  But,  inasmuch  as  several  portions  of 
modern  usage,  — for  example,  the  law  of  maritime  capture,  — 
originated  in  a period  long  anterior  to  that  time,  and  many 
states  which  now  exist  can  trace  back  for  centuries  previous 
the  current  of  their  national  life,  it  seems  best  to  begin  with 
the  earliest  records  we  possess  of  those  nations  whose  politi- 
cal ideas  and  continuous  existence  have  been  formative  in- 
fluences in  the  development  of  the  law  which  now  governs  the 
external  relations  of  the  powers  of  the  civilized  world.  The 
little  city  communities  of  ancient  Greece  and  the  mighty 
republic  of  Rome  are  thus  our  backward  boundaries.  We 
have  to  begin  the  history  of  International  Law  with  a 
description  of  the  ideas  current  among  them  and  the  rules 
which  guided  them  in  their  dealings  with  other  states.  This 
must  not  be  held  to  imply  that  the  other  nations  of  antiquity 
had  no  foreign  policy.  It  simply  means  that  their  interna- 

26 


THE  HISTORY  OF  INTERNATIONAL  LAW. 


27 


tional  activity  did  not  directly  help  to  bring  into  being  either 
the  territorial  distribution  of  modern  Europe  or  the  ideas 
which  dominate  modern  International  Law.  Even  with  the 
limitation  just  insisted  upon  the  history  of  International  Law 
is  a wide  and  varied  subject.  In  the  short  space  of  one 
chapter  it  will  be  impossible  to  give  more  than  the  slightest 
outline  of  it.  The  earlier  portion,  especially,  can  be  touched 
upon  but  lightly,  since  it  is  only  in  the  later  period  that  the 
system  attains  anything  like  its  modern  form  and  present 
importance.  Enough,  however,  will  be  said  to  show  what 
are  the  great  creative  principles  which  have  at  various  times 
governed  the  ideas  of  nations  upon  the  subject  of  their 
mutual  intercourse,  how  those  principles  arose,  how  they 
worked,  and  how  they  were  superseded  by  others  when  they 
were  no  longer  applicable. 

The  history  of  International  Law  may  be  divided  into 
three  periods,  during  each  of  which  one  fundamental  idea 
dominated  the  minds  of  men  with  respect  to  international 
relations.  It  will  be  advisable  to  take  the  periods  separately, 
though  there  was  in  fact  no  strongly  marked  boundary  line 
between  them,  but  each  gradually  shaded  off  into  its  succes- 
sor. The  old  and  the  new  ideas  struggled  awhile  for  the 
mastery,  and  finally  the  new  prevailed. 

§21. 

The  first  period  extends  from  the  earliest  times  to  the 
establishment  of  the  universal  dominion  of  Rome  under  the 
Caesars.  Its  distinguishing  mark  is  the  belief  in  the  first  pe- 
that  nations  owed  duties  to  one  another  if  they  earliest  times  to 
were  of  the  same  race,  but  not  otherwise.  States  pire  — statesas 

, , • i , i i , such  had  no  mu- 

as  such  possessed  no  rights,  and  were  subject  to  no  tuai  rights  and 
obligations.  The  tie  of  kinship,  real  or  feigned,  Kinship  was  the 

° x ° basis  of  the  rela- 

near  or  remote,  through  the  father  or  through  tions  between 

° ° Hellenic  eomrnu- 

the  mother,  was  the  basis  of  all  ancient  society ; nities. 

and  just  as  it  settled  the  condition  of  the  individual  within 


28 


THE  HISTORY  OF  INTERNATIONAL  LAW. 


the  state,  so  it  also  prescribed  and  limited  the  duties  of  the 
state  to  other  states.  This  comes  out  most  clearly  in  the 
history  of  Greece.  In  the  Homeric  poems  piracy  and  rob- 
bery are  accounted  honorable,  and  there  is  no  distinction 
between  a state  of  war  and  a state  of  peace.  The  persons  of 
heralds  were  indeed  respected,  but  this  seems  to  have  been 
due  to  religious  feeling  quite  as  much  as  to  any  sense  of 
intertribal  duty.  And  the  same  ferocity  which  distinguished 
early  society  appears  to  have  continued,  so  far  as  barbarians 
were  concerned,  down  to  the  close  of  the  independent  politi- 
cal existence  of  the  states  of  ancient  Greece.  Aristotle 
calmly  reasons  that  nature  intended  barbarians  to  be  slaves,1 
and  among  the  natural  and  honorable  means  of  acquiring 
wealth  he  classes  making  war  in  order  to  reduce  to  slavery 
such  of  mankind  as  are  intended  by  nature  for  it.2  At  a 
later  period  still,  in  the  speech  of  the  Macedonian  ambassa- 
dors urging  the  MCtolian  Council  to  war  with  Rome,  occurs 
the  passage,  “ Cum  barbaris  eternum  omnibus  grsecis  bellum 
est,  eritque.”  3 This  was  doubtless  merely  a rhetorical  state- 
ment, but  the  fact  that  it  could  be  made  is  significant.  When 
we  reflect  that  by  barbarian  was  meant  simply  non-Greek,  we 
see  at  once  that  the  Greeks  recognized  no  duties  towards 
those  nations  who  were  not  of  Hellenic  descent.  But  among 
themselves  they  had  a rudimentary  International  Law  based 
upon  the  idea  that  all  Hellenic  peoples,  being  of  the  same 
race  and  similar  religion,  were  united  together  by  bonds 
which  did  not  subsist  between  them  and  the  rest  of  the 
world.  They  were  often  guilty  of  acts  of  ferocious  cruelty 
in  their  warfare  with  one  another,  but  nevertheless  they 
recognized  such  rules  as  that  those  who  died  in  battle  were 
to  receive  burial,  that  the  lives  of  all  who  took  refuge  in  the 
temples  of  a captured  city  were  to  be  spared,  and  that  no 
molestation  was  to  be  offered  to  Greeks  resorting  to  the 
public  games  or  to  the  chief  seats  of  Hellenic  worship.4 

1 Politics , I.,  II.,  YI.  3 Livy,  History,  Bk.  XXXI.,  Ch.  29. 

2 Ibid.,  I.,  VIII.  4 Grote,  History  of  Greece,  Pt.  II.,  Ch.  ii. 


THE  HISTORY  OP  INTERNATIONAL  LAW.  29 

When  Rhodes  became  the  great  naval  power  of  the  iEgean, 
a maritime  code  arose  which  was  called  the  Laws  of  the 
Rhodians,  and  was  obeyed  wherever  Greek  commerce  ex- 
tended. This  code  has  a curious  and  important  history. 
From  it  were  derived  many  of  the  commercial  and  marine 
regulations  of  the  Roman  Emperors,  and  after  the  revival  of 
commerce  vague  recollections  of  imperial  laws  were  among 
the  influences  which  helped  to  form  the  Consolato  del  Mare, 
the  great  maritime  code  of  the  Middle  Ages,  from  which 
much  of  the  modern  law  of  naval  capture  and  many  modern 
commercial  regulations  are  derived.1 


22. 


Among  the  Romans  of  the  Republic  there  is  perhaps  less 
trace  of  a true  International  Law  than  among  the  Greeks. 
Rome  stood  alone  in  the  world.  She  was  not 


one  of  a group  of  kindred  states ; and  therefore  possessed  no  true 

. ° A International  Law. 

in  her  dealings  with  other  states  she  was  rarely 
restrained  by  any  notion  of  rights  possessed  by  them  as 
against  herself.  Many  writers  have  considered  that  in  her 
Jus  Feciale,  and  in  the  strict  rules  which  excluded  from  her 
armies  all  who  had  not  taken  the  sacramentum , or  military 
oath,  she  possessed  the  germs  of  an  international  code.  But 
it  is  clear  that  these  regulations  sprang  partly  from  religious 
feeling  and  partly  from  the  love  of  order  which  so  distin- 
guished the  ancient  Romans.  They  were  in  no  respect  due 
to  any  idea  that  Rome  had  obligations  towards  other  nations. 
It  was  the  duty  of  the  Fecials  to  demand  satisfaction  from 
foreign  states,  and  to  make  solemn  declarations  of  war  by 
dooming  the  enemy  to  the  infernal  gods  ; 2 but  the  law  which 
imposed  these  functions  upon  them  was  purely  a matter  of 
internal  regulation,  and  by  the  time  of  Cicero  it  had  ceased 
to  be  strictly  observed.  The  rule  about  the  military  oath 


1 Pardessus,  Us  et  Coutumes  de  la  Mer , I.,  21-34,  209-260,  and  II.,  1-368. 

2 Livy,  History , Bk.  I.,  Ch.  32  ; Cicero,  Be  Ojficiis,  Bk.  I.,  Ch.  ii. 


30 


THE  HISTORY  OF  INTERNATIONAL  LAW. 


was  no  more  intended  for  the  protection  of  the  enemy  from 
lawless  adventurers  than  is  the  American  law  of  recruiting. 
True  International  Law  is  based  upon  the  notion  that  states 
are  mutually  bound  to  observe  certain  rules  in  their  dealings 
with  one  another.  A few  instances  may  be  quoted  of  the 
use  by  Livy  and  other  Roman  writers  of  the  phrase  Jus  Gren- 
tium  in  the  sense  of  universal  usage  binding  on  all  nations 
in  the  matter  of  war  and  negotiation ; 1 but,  in  the  main, 
Rome  neither  claimed  for  herself  nor  gave  to  other  states 
the  benefit  of  any  idea  of  mutual  obligation,  except  with 
regard  to  the  faith  of  treaties  and  the  safety  of  the  persons 
of  ambassadors. 

§23. 

The  second  period  begins  with  the  establishment  of  the  uni- 
versal dominion  of  Rome  under  the  Caesars,  and  ends  with  the 
In  the  Second  Reformation.  It  is  characterized  by  the  concep- 
Roman  Empire  to  tion  that  there  was  to  be  found  somewhere  a 

the  Reformation  . 

—it  was  deemed  common  superior  whose  commands  regulated 

that  the  relations  , „ , . . , , , 

of  states  must  be  the  dealings  of  ordinary  states  with  each  other, 

regulated  by  a ° e i r 

common  superior.  — a fact  which  of  itself  completely  destroys  the 

The  Emperor  was  _ 1 

such  a superior  theory  of  absolute  international  rights ; for 

while  the  Empire  J ° 

was  aii-powerfui.  among  those  rights  that  of  equality  is  always 
reckoned,  and  we  now  see  that  for  many  ages  International 
Law  was  based  upon  the  doctrine  of  the  fundamental  in- 
equality of  states.  The  Roman  Empire  in  its  palmy  days 
extended  over  the  larger  part  of  Europe,  and  much  of  Asia 
and  Africa.  Roughly  speaking,  it  was  coterminous  with  the 
world  of  ancient  civilization.  The  policy  of  its  rulers  fre- 
quently left  some  remnants  of  self-government  to  conquered 
nations.  Thus  the  Roman  Emperor  was  the  political  superior 
of  a large  number  of  subordinate  rulers,  and  their  disputes, 
whether  personal  or  national,  were  settled  by  appeals  to 
Caesar.  Under  these  circumstances  International  Law  was 

1 See  article  on  Jus  Gentium  by  the  late  Professor  Nettlesliip  in  the 
Journal  of  Philology , Vol.  XIII.,  No.  26. 


THE  HISTORY  OF  INTERNATIONAL  LAW. 


31 


really  based  upon  the  commands  of  a superior.  Its  precepts 
were  laws  in  the  strictest  Austinian  sense.  They  imposed 
perfect  obligations,  and  were  armed  with  tremendous  sanc- 
tions. Universal  sovereignty  was  a great  fact.  It  filled 
men’s  minds  with  awe  and  wonder.  The  Majestas  Populi 
Romani  was  an  object  of  religious  reverence,  and  the  Roman 
state  itself,  incarnate  in  the  person  of  its  Caesar,  was  wor- 
shipped as  a god.  It  stood  between  the  world  and  anarchy, 
it  protected  civilization  against  barbarism,  it  united  the 
nations  by  moral  and  material  bonds,  it  kept  the  Roman 
peace  within  its  boundaries,  and  it  held  at  bay  beyond  them 
the  savage  hordes  who  longed  for  the  plunder  of  its  rich 
provincial  lands.  No  wonder,  then,  that  its  supremacy  was 
not  merely  submitted  to,  but  welcomed.  No  wonder  that 
people  theorized  about  it,  and  held  that  the  existence  of  a 
common  superior  over  all  states  was  part  of  the  natural 
order  of  the  universe.  No  wonder  that  memories  of  world- 
wide sway  were  so  deeply  graven  on  the  minds  of  men  that, 
long  after  Rome  had  fallen,  her  conquerors  strove  to  build 
anew  the  fabric  of  her  greatness,  and  their  chieftains  could 
think  of  no  alternative  to  tribal  sovereignty  but  universal 
dominion. 

While  the  old  Roman  Empire  remained  strong,  fact  and 
theory  with  regard  to  the  settlement  of  disputes  between 
nations  coincided  with  tolerable  accuracy.  It  must  not  be 
supposed  that  the  Emperors  issued  among  their  laws  any- 
thing like  an  international  code.  There  was  no  room  for 
any  such  body  of  rules,  because  the  subordinate  states  could 
have  little  or  no  foreign  policy.  Their  external  activity  was 
chiefly  exercised  in  their  dealings  with  Rome  herself.  In  these 
they  stood  rather  in  the  relation  of  suppliants  to  a superior 
than  of  equals  treating  with  an  equal  on  common  ground. 
When  dynastic  disputes  arose,  or  when  one  subordinate  state 
complained  of  ill-treatment  from  another,  an  appeal  was 
made  to  Caesar,  and  his  decision  was  final.  A series  of 
isolated  judgments  on  such  cases  could  give  rise  to  no  body 


32 


THE  HISTORY  OF  INTERNATIONAL  LAW. 


of  rules  by  which  international  conduct  could  be  guided ; 
and,  in  fact,  no  such  rules  are  to  be  found  in  Roman  Law. 
With  regard  to  outer  barbarians  the  customs  of  Roman  war- 
fare were  as  severe  as  ever.  Their  tribes  were  beyond  the 
pale  of  law.  Slaughter  and  rapine  were  their  portion  if  they 
resisted,  and  those  who  escaped  the  sword  were  too  often 
sold  into  slavery. 

§24d 

After  the  fall  of  the  Western  Empire  the  theoiy  of  a 
common  superior  for  states  still  survived.  Just  as  Greece 
The  Holy  Roman  conquered  her  conquerors  by  bringing  them 
Papacy  ciafmed  into  subjection  to  her  arts  and  her  philosophy, 
jiydurin^the0^  s0  Rome  amid  the  ruins  of  her  material  power 
Middle  Ages.  enslaved  the  minds  of  the  nations  who  no 
longer  submitted  to  her  yoke.  The  spell  of  her  world-wide 
dominion  was  not  broken  by  the  invasions  of  Attila  and  the 
sack  of  Genseric.  When  the  sceptre  had  departed  from  her 
hand,  men  refused  to  believe  in  what  was  happening  before 
their  eyes.  They  held  that  her  dominion  was  to  be  eternal, 
as  well  as  universal.  Though  Rome  was  no  longer  the  seat 
of  empire,  still  the  Empire  itself  was  Roman.  It  must  live 
on,  they  thought,  in  some  form ; and  so  they  cast  about  to 
find  a power  which  should  be  a fit  possessor  of  the  world-wide 
sovereignty  no  longer  centred  in  the  city  of  the  seven  hills. 
At  first  the  only  substitute  to  be  found  was  the  decaying 
Empire  of  the  East,  and  for  many  years  the  Roman  world 
was  ruled,  in  name  at  least,  from  Constantinople.  But  in 
time  a more  vigorous  successor  arose ; and  from  the  corona- 
tion of  Charlemagne  as  Emperor  by  Pope  Leo  III.  in  the 
basilica  of  St.  Peter  at  Rome,  on  Christmas  Day,  A.D.  800, 
the  imperial  power  and  the  world-wide  dominion  involved  in 
it  were  held  to  have  passed  to  a new  line  of  Frankish  sover- 

1 The  substance,  and  often  the  words,  of  this  section  and  the  two  following 
are  taken  from  the  author’s  paper  on  Grotius  in  his  Essays  on  Some  Dis- 
puted Questions  in  Modern  International  Law. 


THE  HISTORY  OF  INTERNATIONAL  LAW. 


33 


eigns.1  The  Eastern  Empire  put  forth  a feeble  protest,  but 
outside  its  own  rapidly  diminishing  territories  none  accepted 
its  claim  to  universal  sovereignty.  For  many  centuries  the 
Romano-German  Empire  was  believed  to  be  a continuation 
of  the  old  dominion  of  the  city  of  the  seven  hills,  and 
theoretically  it  succeeded  to  all  the  powers  of  its  predeces- 
sor.2 Practically,  however,  the  personal  character  of  each 
Emperor  largely  determined  the  nature  and  extent  of  his 
influence ; and  gradually  the  Papacy,  which  had  been  the 
chief  agent  in  creating  the  new  or  Holy  Roman  Empire, 
became  its  rival  in  pretensions  to  universal  dominion.  The 
pretended  gift  by  Constantine  of  all  the  West  to  the  Roman 
Pontiff,  and  the  very  real  spiritual  supremacy  exercised  by  the 
successors  of  St.  Peter,  formed  the  basis  of  a claim  “ to  give 
and  to  take  away  empires,  kingdoms,  princedoms,  marquis- 
ates,  duchies,  countships,  and  the  possessions  of  all  men.” 
And  this  claim  was  not  an  idle  boast,  as  was  proved  in  1077, 
when  the  Emperor  Henry  IV.,  the  most  powerful  prince  in 
Europe,  humbled  himself  at  Canossa  before  the  great  Pope 
Gregory  VII.3 

§ 25. 

The  International  Law  of  the  Middle  Ages  was  influenced 
enormously  by  the  conflicting  claims  of  the  Pope  and  the 
Emperor.  The  idea  of  a common  superior  still  Theideaofa 
lingered  among  the  nations,  and  greatly  assisted  d?s™rT«"redPatior 
the  Roman  Pontiffs  in  their  efforts  to  obtain  a the  Keformation- 
suzerainty  over  all  temporal  sovereigns.  For  as  the  Empire 
founded  by  Charlemagne  gradually  decreased  in  extent  till  it 
scarce  spread  beyond  the  limits  of  Germany,  more  and  more 
difficulty  was  felt  in  ascribing  to  it  universal  dominion.  Yet 
no  one  dreamed  of  asserting  boldly  that  independent  states 
had  no  earthly  superior,  and  therefore  when  the  Papacy  came 

1 Bryce,  Holy  Homan  Empire , Chs.  IV.,  V. 

2 Ibid.,  Chs.  VII.,  XII.,  XXV. 

3 Ibid.,  Ch.  X. 

D 


34 


THE  HISTORY  OF  INTERNATIONAL  LAW. 


forward  with  its  claims,  men’s  minds  were  predisposed  to 
accept  them.  As  an  arbitrator  between  states,  the  Pope 
often  possessed  great  influence  for  good.  In  an  age  of  force 
he  introduced  into  the  settlement  of  international  disputes 
principles  of  humanity  and  justice ; and  his  supernatural 
sanctions  compelled  obedience  from  brutal  potentates  who 
cared  little  or  nothing  .for  the  higher  law  which  he  ex- 
pounded.1 Had  the  Papacy  always  acted  upon  the  prin- 
ciples it  invariably  professed,  its  existence  as  a great  court 
of  appeal  in  disputes  between  states  would  have  been  an  un- 
mixed benefit.  But  the  Roman  Curia  gradually  sank  into 
such  terrible  corruption  that  the  moral  sense  of  mankind  re- 
volted against  its  iniquities,  and  the  authority  of  the  Pope 
became  less  and  less,  till  at  length  a large  part  of  Europe 
threw  it  off  altogether.  Both  the  Papacy  and  the  Empire 
remained ; but  the  theory  of  universal  dominion  received  its 
death-blow  when  in  the  stormy  period  of  the  Reformation 
the  two  powers,  one  or  other  of  which  ought,  according  to  it, 
to  have  calmed  the  waves  of  political  and  religious  strife, 
were  obliged  to  join  in  the  turmoil.  The  Pope,  of  course, 
opposed  the  Reformers,  and  the  Emperor  took  the  same  side. 
Community  of  religion  became  a new  bond  between  states. 
The  Protestant  princes  of  the  German  Empire  were  often  in 
arms  against  the  Emperor.  His  authority  was  set  at  nought 
within  the  limits  of  his  own  dominions,  and  outside  them  he 
had  long  received  nothing  more  than  mere  honorary  prece- 
dence as  the  first  potentate  in  Christendom.  Thus  the  notion 
of  a common  superior  exercising  sovereign  rights  over  all 
nations  gradually  faded  away.  Practically  it  had  long  been 
obsolete,  and  at  length  it  ceased  to  exist. 

§26. 

New  principles  were  required  unless  states  were  openly  to 
avow  that  in  their  mutual  dealings  they  recognized  no  law  but 
1 J.  S.  Mill,  Dissertations  and  Discussions,  II.,  152-158. 


THE  HISTORY  OF  INTERNATIONAL  LAW. 


35 


the  right  of  the  strongest.  For  a time  there  was  undoubtedly 
a reaction  towards  this  view.  In  1513  Machi-  For  a time  there 
avelli  set  forth  in  The  Prince  the  doctrine  that  ofautterViawie^-r 


. . - . ........  ncao  in  imci  ua- 

in  matters  of  state  ordinary  moral  rules  did  not  tionai  affairs, 
apply,  and  his  work  soon  became  the  political  manual  of  the 
rulers  and  generals  of  the  time.  Cruel  as  were  the  wars  of 
the  Middle  Ages,  it  is  doubtful  whether  the  long  struggle 
between  Spain  and  the  revolted  Netherlands,  and  the  terrible 
Thirty  Years’  War,  were  not  stained  by  greater  atrocities 
than  any  perpetrated  in  the  days  of  chivalry.  But  fortu- 
nately for  humanity  the  tendency  towards  lawlessness  in 
international  transactions  was  arrested  by  the  publication  in 
1625  of  the  great  work  of  Grotius,  De  Jure  Belli  ac  Pads. 
In  this  book  the  new  ideas  which  had  been  floating  about  in 
the  atmosphere  of  European  thought  for  a century  or  more 
were  clearly  stated,  systematically  arranged,  and  logically 
applied  to  the  regulation  of  the  mutual  dealings  of  states. 
Weary  of  anarchy,  Europe  eagerly  adopted  a system  which 
promised  to  put  some  curb  upon  the  fierce  passions  of  rough 
warriors  and  the  finesse  of  polished  statesmen.  Thus  the 
whole  basis  of  International  Law  was  changed  and  new  prin- 
ciples introduced  into  its  very  foundation.  They  belong  to 
our  third  period ; but  before  we  inquire  what  they  were  and 
how  they  were  applied,  it  will  be  well  to  state  very  briefly 
the  nature  of  the  secondary  influences  which  helped  to 
mould  the  law  of  nations  during  the  period  we  have  just 
reviewed. 

10  s*. 


As  the  Roman  Empire  fell,  the  advancing  tide  of  barbarian 
invasion  swept  away  the  bulwarks  of  civilization.  Commerce 
disappeared;  warfare  was  restrained  by  no  rules;  Influences  which 
pirates  swept  the  seas.  And  in  the  ninth  cen-  ““nt  durf^the6" 
tury  the  terrible  incursions  of  the  Northmen  Mlddle  Ages- 
began  to  add  a fresh  element  of  horror  to  the  universal  con- 
fusion. But  a new  and  better  order  slowly  evolved  itself 


36 


THE  HISTORY  OP  INTERNATIONAL  LAW. 


out  of  the  chaos.  The  Christian  Church  softened  the  man- 
ners and  mitigated  the  cruelty  of  the  barbarian  nations,  as 
one  by  one  they  entered  into  her  fold.  The  temporal  power 
of  the  Holy  Roman  Empire  and  the  spiritual  authority  of  the 
Papacy  worked  together  for  a time  in  the  cause  of  civiliza- 
tion. Feudalism  became  the  great  organizing  principle  in 
remodelling  society.  The  study  of  Roman  Law  gave  a 
magazine  of  new  ideas  and  rules  to  statesmen  and  lawyers. 
The  revival  of  commerce  produced  various  codes  of  maritime 
law,  of  which  the  famous  Consolato  del  Mare  was  the  chief. 
Viewed  in  connection  with  international  relations,  the  most 
important  part  of  the  new  organization  of  Europe  was  the 
universal  supremacy  claimed  by  the  Roman  Pontiff  and  the 
Emperor,  the  former  in  the  spiritual,  the  latter  in  the  tem- 
poral sphere.  To  this  we  have  already  alluded.  It  may, 
however,  be  advisable  to  point  out  here  that  both  Pope  and 
Emperor  were  rather  judges  and  arbitrators  than  lawgivers. 
They  dealt  with  particular  cases,  not  with  general  rules. 
There  was  no  corpus  of  International  Law  till  comparatively 
modern  times.  The  nearest  approach  in  the  Middle  Ages  to 
any  system  of  regulations  that  could  be  known  beforehand 
by  states  was  found  in  the  various  maritime  codes. 


§28. 

Foremost  among  the  secondary  influences  which  deter- 
mined the  ideas  of  the  Middle  Ages  upon  international 
importance  of  the  relations  was  the  conception  of  territorial  sov- 
territoriai"  of  ereignty  due  to  feudalism.  When  the  political 
sovereignty.  rights  and  duties  of  individuals  within  the  state 
came  to  be  associated  with  the  possession  of  land,  it  was  an 
easy  inference  that  the  sovereign  of  the  community,  whose 
political  functions  were  far  larger  than  those  of  any  other 
member  of  it,  must  have  a corresponding  extension  given  to 
his  rights  over  the  soil  on  which  his  people  were  settled. 
Formerly,  if  he  could  not  be  universal  ruler,  he  was  lord  of 


THE  HISTORY  OF  INTERNATIONAL  LAW. 


37 


his  people.  Now,  in  the  absence  of  the  former  alternative, 
he  claimed  to  be  lord  of  his  people’s  lands.  Thus  sover- 
eignty became  territorial,  a character  it  still  retains.  The 
influence  of  the  change  has  been  far  greater  during  the  mod- 
ern epoch  than  it  was  in  the  Middle  Ages,  and  it  will  there- 
fore be  considered  more  at  length  when  we  deal  with  our 
third  period.  Feudal  notions  lent  themselves  so  readily  to 
the  theory  of  universal  sovereignty  that  the  principles  con- 
tained in  them  could  not  produce  any  great  revolution  in 
thought  with  regard  to  international  matters  while  that 
theory  retained  its  sway.  Feudalism  organized  society  in 
a pyramidical  form.  At  the  base  was  the  great  mass  of  the 
cultivators  of  the  soil.  Above  them  came  the  mesne  lords, 
above  them  the  tenants-in-chief,  and  finally  the  king.  But 
as  there  were  many  kings  and  princes  in  Europe,  it  was  easy 
to  go  a step  further  and  place  at  the  apex  of  the  pyramid 
one  common  superior,  who  was  to  exercise  overlordship  over 
all  subordinate  rulers.  Throughout  the  greater  part  of 
Europe  this  superiority  was  conceded  in  theory  to  the  head 
of  the  Holy  Roman  Empire,  though  the  realm  of  England 
claimed  entire  independence,  and  her  kings  insisted  upon  the 
imperial  character  of  their  own  royalty.  But  when  the 
direct  power  of  the  Emperors  became  limited  to  Germany, 
their  theoretical  supremacy  over  other  lands  had  little  practi- 
cal effect.  • Among  non-Germanic  rulers  feudal  ties  and  papal 
authority  formed  a rudimentary  public  law.  Thus  we  find 
that  within  the  Empire  the  rules  of  Roman  Law  still  con- 
trolled the  mutual  relation  of  states,  with  Csesar  as  supreme 
judge  and  supreme  lawgiver;  while  outside  it  feudal  subor- 
dination took  the  place  of  imperial  authority,  and  when 
feudal  ties  failed  the  Papacy  stood  in  the  background,  ready 
and  sometimes  able  to  settle  disputes  by  its  spiritual  author- 
ity. We  have  already  seen  how,  at  the  Reformation,  the 
Pope  and  the  Emperor  lost  even  the  theoretical  acknowledg- 
ment of  their  claim  to  universal  dominion.  By  that  time 
feudalism,  too,  had  fallen  into  utter  decay,  and  the  way  was 


38 


THE  HISTORY  OF  INTERNATIONAL  LAW. 


left  clear  for  the  introduction  of  fresh  regulative  principles. 
The  old  order  bequeathed  to  the  new  but  one  element,  and 
that  was  the  conception  of  territorial  sovereignty.  Roman 
Law  of  course  remained,  for  it  is  part  of  the  world’s  heritage 
for  all  time  ; but  the  portions  of  it  that  influenced  the  foun- 
dation of  the  new  system  were  those  which  had  been  little 
used  in  the  old. 

§29. 


Cruelty  of  the 
usage  of  war. 
Growth  of 
maritime  codes. 


Up  to  the  end  of  the  second  period  the  usages  of  war  were 
still  ferocious  in  the  extreme.  About  the  time  of  Grotius  we 
find  the  first  beginnings  of  the  custom  of  ex- 
changing prisoners  ; but  this  great  amelioration 
won  its  way  to  universal  adoption  by  slow  de- 
grees. During  the  Middle  Ages  captives  were  often  treated 
with  detestable  cruelty.  For  instance,  in  1268  Charles  of 
Anjou,  brother  of  Saint  Louis  of  France,  first  mutilated 
and  then  burnt  alive  a number  of  prisoners  he  had  taken  at 
the  battle  of  Tagliacozzo.1  The  population  of  an  invaded 
country  were  subjected  to  the  foulest  indignities,  and  some- 
times whole  districts  were  laid  waste  and  turned  into  deserts 
out  of  sheer  wantonness.  When  a place  was  taken  by 
storm  it  was  given  up  to  pillage  and  rapine,  no  attempt  to 
restrain  the  passions  of  the  victorious  soldiery  being  made  by 
their  commanders.  Even  the  rules  of  good  faith  were  fre- 
quently disregarded,  though  in  theory  their  obligation  was 
admitted.  Both  the  rights  and  duties  of  neutrals  were  ill 
defined  and  loosely  observed.  Commerce  had,  however,  won 
for  itself  considerable  recognition.  The  date  of  the  Conso- 
lato  del  Mare  is  very  uncertain,  but  it  cannot  be  placed  later 
than  the  fourteenth  century.  And  it  did  not  stand  alone ; 
for  the  revival  of  commerce  led  to  the  growth  of  other  mari- 
time codes,  such  as  the  Laws  of  Oleron,  the  Leges  Wis- 
buenses,  and  the  Coutumes  d’Amsterdam.2  From  that  time, 


1 Hosack,  Rise  and  Growth  of  the  Law  of  Nations , 52. 

2 Pardessus,  Us  et  Coutumes  de  la  Mer,  Vol.  II. 


THE  HISTORY  OE  INTERNATIONAL  LAW. 


39 


therefore,  Europe  had  not  only  a codified  lex  mercatoria , but 
also  a recognized  body  of  laws  for  the  regulation  of  maritime 
capture.  Just  at  the  close  of  our  present  period  diplomacy 
showed  signs  of  becoming  a regular  profession.  The  old 
custom  of  sending  envoys  only  when  some  special  business 
had  to  be  transacted  was  giving  place  to  the  modern  system 
of  permanent  embassies,  resident  at  the  courts  of  friendly 
nations.  But  though  in  certain  parts  of  International  Law 
some  progress  may  be  noted,  yet,  taken  as  a whole,  the 
system  was  still  very  imperfect.  Indeed,  it  cannot  be  called 
a system  with  any  approach  to  accuracy.  It  was  rather  a 
mass  of  undigested,  and  often  contradictory,  precedents,  and 
there  was  danger  of  its  being  entirely  swept  away  in  the 
great  outburst  of  cruelty  and  lawlessness  that  arose  as  old 
restraints  became  inoperative,  and  old  theories  faded  from 
the  minds  of  men. 

§30. 


We  now  come  to  our  third  period,  which  extends  from  the 
Reformation  to  the  present  time.  The  basis  of  International 
Law  during  the  whole  of  this  period  has  been 
the  principle  of  the  absolute  independence  of 
sovereign  states,  and  their  complete  equality 
before  the  law  which  regulates  their  mutual 
intercourse  as  a society  of  independent  units. 

1 When  a number  of  equal  and  independent 
states  no  longer  own,  even  in  theory,  a common 
superior,  the  most  obvious  mode  of  escape  from  utter  lawless- 
ness in  their  mutual  dealings  seems  to  us,  with  our  present 
ideas,  to  be  the  regulation  of  their  conduct  towards  one 
another  by  rules  to  which  all  have  assented.  But  it  may 
well  be  doubted  whether  International  Law  in  the  modern 


In  the  Third 
Period  — from 
the  Reformation 
to  the  present 
time  — the  ruling 
principle  is  that 
there  exists  a 
society  of  inde- 
pendent states, 
the  members  of 
which  have 
mutual  rights 
and  obligations. 


1 Much  of  this  section  and  the  ten  following  are  to  be  found  in  the 
author’s  paper  on  Grotius,  printed  in  his  Essays  on  Some  Disputed  Questions 
in  Modern  International  Law , but  it  will  be  seen  that  he  has  modified  some 
of  the  views  put  forward  in  the  earlier  work. 


40 


THE  HISTORY  OF  INTERNATIONAL  LAW. 


sense  would  ever  have  existed  had  general  consent  been  sup- 
posed to  be  necessary  before  its  commands  could  claim 
obedience.  As  a matter  of  fact,  their  obligation  was  based 
partly  upon  the  express  or  tacit  consent  of  states,  and  partly 
upon  the  theoiy  of  the  extreme  sanctity  attaching  to  the 
precepts  of  the  so-called  Law  of  Nature.  The  great  exploit 
of  the  early  publicists  was  to  apply  this  Law  of  Nature  to 
the  intercourse  of  states,  and  thus  fill  up  the  gap  caused  by 
the  disappearance  of  the  conception  of  universal  sovereignty. 
But,  in  addition,  general  consent  was  put  forward  by  most  of 
them  as  the  ground  on  which  certain  of  their  rules  rested. 
Thus  from  the  first  there  were  two  elements  in  modern  Inter- 
national Law.  Some  writers  and  thinkers  gave  greater 
prominence  to  the  Law  of  Nature,  others  to  the  consent  of 
nations,  but  few  are  to  be  found  who  deal  with  one  element 
to  the  exclusion  of  the  other.  There  can,  however,  be  no 
doubt  that  the  theory  of  a state  and  a Law  of  Nature  was 
the  most  powerful  influence  in  creating,  shaping,  and  winning 
acceptance  for  the  International  Law  which  arose  on  the  ruins 
of  the  state-system  of  mediaeval  Europe. 

§ 31. 

It  is  impossible  to  attempt  here  an  account  of  the  origin 
and  growth  of  the  ideas  which  cluster  round  the  notion  of 
The  change  in  Nature  and  her  law.  They  had  their  birth  in 
about  bySthewo?k  ancient  Greece,  and  they  are  still  alive  and 
theor^of^Lawof  active  to-day,  though  their  vigor  is  not  so  great, 
or  the  acceptance  of  them  so  general,  as  it  was 
when  Hugo  Grotius  wrote  that  “the  principles  of  Natural 
Law,  if  you  attend  to  them  rightly,  are  of  themselves  patent 
and  evident,  almost  in  the  same  way  as  things  which  are 
perceived  by  the  external  senses.” 1 Such  a statement  as 
this  takes  away  the  breath  of  a modern  jurist ; but  when  it 
was  first  given  to  the  world  no  one  thought  it  extravagant, 
1 I)e  Jure  Belli  ac  Pads,  Prolegomena,  § 39. 


THE  HISTORY  OF  INTERNATIONAL  LAW. 


41 


because  every  one  who  reasoned  at  all  upon  the  problems  of 
society  and  government  accepted  without  reserve'  the  theory 
of  a Law  of  Nature.  On  this  one  point  even  Catholic  and 
Protestant  were  agreed.  The  Jesuit  casuist,  Francisco  Sua- 
rez, and  the  Oxford  civilian,  Albericus  Gentilis,  were  alike 
in  this,  that  they  regarded  Nature  as  a lawgiver  and  endeav- 
ored to  interpret  what  they  deemed  her  just  and  simple  pre- 
cepts to  a world  which  stood  sorely  in  need  of  them.  These 
men  were  two  of  the  most  distinguished  of  the  forerunners 
of  Grotius.  They  both  wrote  towards  the  end  of  the  six- 
teenth century,  and  from  the  treatise  of  the  latter,  Be  Jure. 
Belli , the  great  Dutch  jurist  took  much  of  the  plan  and 
arrangement  of  his  own  Be  Jure  Belli  ac  Pads.  Indeed,  so 
great  are  his  obligations  to  Gentilis  that  some  authorities 
are  disposed  to  contest  his  right  to  be  called  the  father  of 
International  Law.  But  after  making  all  possible  allowances 
for  his  debt  to  his  predecessor,  the  fact  remains  that  it  was 
Grotius,  and  not  Gentilis,  who  won  the  ear  of  the  civilized 
world,  altered  its  theory  of  international  relations,  and  made 
its  warfare  infinitely  more  merciful  than  before.  It  is  one 
of  the  marvels  of  history  that  this  was  possible.  Huig  van 
Groot,  commonly  called  Hugo  Grotius,  was  born  at  Delft,  in 
the  Province  of  Holland,  on  the  tenth  of  April,  1583,  and 
grew  up  amid  the  later  scenes  of  the  long  struggle  of  his 
countrymen  with  Spain  on  behalf  of  their  local  liberties  and 
national  independence.  He  early  distinguished  himself  both 
as  a scholar  and  as  a jurist,  and  was  soon  raised  to  public 
office.  But  the  part  he  took  in  civil  disputes  led  to  his  arrest 
by  order  of  Prince  Maurice  of  Nassau  and  the  States-General 
in  1618.  He  was  condemned  to  perpetual  imprisonment,  but 
escaped  after  three  years,  owing  to  the  devotion  of  his  wife, 
and  fled  to  Paris,  where  he  lived  for  a time  on  a pension 
granted  by  the  French  king  and  very  irregularly  paid.  After 
some  years  he  entered  into  the  diplomatic  service  of  Queen 
Christina  of  Sweden,  and  while  engaged  in  the  performance 
of  a mission  on  behalf  of  the  Swedish  government  in  1645, 


42  THE  HISTORY  OE  INTERNATIONAL  LAW. 

he  died  at  Rostock  from  the  effects  of  shipwreck.  It  was 
while  he  was  living  at  Paris  that  he  published  his  great  book 
in  1625.  Its  success  was  marvellous.  Gustavus  Adolphus 
carried  a copy  about  with  him  in  his  campaigns.  In  the 
Peace  of  Westphalia  its  leading  principles  were  recognized 
and  acted  upon,  and  when  learning  began  to  revive  as  the 
ravages  of  war  were  repaired,  it  was  taught  as  public  law  in 
the  University  of  Heidelberg. 


§32. 

How  was  it  possible  for  a poor  scholar,  exiled  from  his 
native  land  and  neglected  in  the  country  of  his  adoption,  to 
causes  of  the  change  the  ideas  of  mankind  in  a most  impor- 
by theCgreatrwOTk  tant  department  of  human  thought?  The  an- 
ot  Grotius.  swer  to  this  question  involves  three  sets  of  con- 

siderations. In  the  first  place,  the  world  was  weary  of  the 
evils  that  sprang  from  the  prevailing  doubt  as  to  the  proper 
basis  of  international  rules,  or  even  as  to  their  existence. 
The  very  cause  which  impelled  Grotius  to  write,  impelled 
men  to  listen  to  his  voice.  He  says,  “I  saw  prevailing 
throughout  the  Christian  world  a license  in  making  war  of 
which  even  barbarous  nations  would  have  been  ashamed ; 
recourse  being  had  to  arms  for  slight  reasons  or  no  reason ; 
and  when  arms  were  once  taken  up,  all  reverence  for  divine 
and  human  law  was  thrown  away,  just  as  if  men  were 
henceforth  authorized  to  commit  all  crimes  without  re- 
straint.” 1 When  his  book  was  given  to  the  world,  the 
worst  horrors  of  the  Thirty  Years  War  had  not  taken  place. 
The  sack  of  Magdeburg,  the  brutal  license  and  utter  foul- 
ness of  both  sides,  the  tortures,  the  profanities,  the  devasta- 
tions which  turned  the  most  fertile  part  of  Germany  into  a 
desert,  were  yet  to  horrify  the  world.  But  all  this  and 
more  followed  in  a few  years ; and  men  who  had  lived 
through  a whole  generation  of  warfare  fitter  for  Iroquois 
1 De  Jure  Belli  ac  Pads,  Prolegomena,  § 28. 


THE  HISTORY  OE  INTERNATIONAL  LAW. 


43 


braves  than  Christian  warriors  were  disposed  to  listen  when 
one  of  the  greatest  scholars  and  jurists  of  the  age  told  them 
that  there  was  a law  which  set  bounds  to  the  ferocity  of 
soldiers  and  bade  statesmen  pause  before  they  went  to  war 
on  frivolous  and  insincere  pretexts.  Yet  Grotius  might 
have  pleaded  in  vain  for  justice  and  humanity,  if  he  had 
not  been  able  to  appeal  to  principles  universally  recognized, 
and  to  show  that  these,  when  properly  interpreted,  com- 
manded the  precepts  which  he  endeavored  to  inculcate.  He 
applied  the  accepted  theory  of  a Law  of  Nature  to  interna- 
tional concerns,  and  made  all  who  believed  in  that  law  and 
its  authority  believe  also  that  it  condemned  the  practices 
from  which  they  were  recoiling  in  horror.  And  lastly,  he 
brought  to  the  performance  of  this  great  task  all  the  powers 
of  an  acute  intellect,  and  all  the  treasures  of  a marvellous 
erudition.  As  a scholar  he  was  uncritical,  like  all  the 
scholars  of  the  seventeenth  century ; but  the  range  of  his 
learning  was  enormous.  Not  only  did  he  pile  up  precedent 
upon  precedent,  and  gather  instances  from  all  history, 
sacred  and  profane ; but  he  digested  his  vast  mass  of  matter 
into  an  intelligible  system,  and  gave  it  to  the  world  in  a form 
which  attracted  men  of  action  as  well  as  students  and 
thinkers. 

§33. 

We  are  now  in  a position  to  appreciate  the  meaning  and 
importance  of  the  Grotian  version  of  Nature  and  her  Law. 
He  held  that  man  was  a being  possessed  of  a 
social  and  rational  nature,  and  consequently  version  of  Nature 

n I,-,  and  Natural  Law. 

able  to  discern  what  was  conformable  with 
that  nature.  Natural  Law  was  the  rule  of  right  reason,  in- 
dicating that  an  act  by  its  complying  or  disagreeing  with 
human  nature  had  in  it  a moral  deformity  or  moral  necessity, 
and  was  consequently  forbidden,  or  commanded  by  God,  the 
Author  of  Nature.  This  law  was  immutable.  God  himself 
could  not  change  it,  any  more  than  He  could  make  twice 


44 


THE  HISTORY  OF  INTERNATIONAL  LAW. 


two  to  be  other  than  four.1  Human  Law  might  go  beyond  it 
or  deal  with  matters  which  it  did  not  touch,  but  could  not 
justly  contravene  it.  Owing  to  its  intrinsic  rightness,  it 
ruled  the  intercourse  of  nations  as  well  as  individuals;  but  for 
the  guidance  of  states  in  their  relations  with  each  other,  there 
was,  in  addition  to  Natural  Law,  a Voluntary  Law,  based 
upon  the  consent  of  all  or  most  nations.  This  part  of  the 
international  code  could  vary  from  time  to  time ; but  the 
other  portion  was  not  subject  to  change,  since  it  was  founded 
upon  human  nature  itself.2 

§34. 

When  we  are  dealing  with  speculations  such  as  these,  we 
never  know  whether  we  are  considering  ethical  theory  or 
The  theory  of  a legal  rule.  If  the  Law  of  Nature  be  meant  for 
criticised.  a collection  of  opinions  as  to  the  proper  method 

of  regulating  human  conduct,  well  and  good.  We  can  criti- 
cise it  as  we  could  any  other  theory  of  what  ought  to  be. 
But  if  it  be  meant  as  imperative  law,  we  can  only  say  that  it 
is  nothing  of  the  kind  ; for  it  is  not  a body  of  rules  actually 
observed  among  men,  neither  is  it  armed  with  any  sanctions 
whereby  those  who  obey  it  not  maj^  be  coerced  and  punished. 
In  fact,  its  supporters  themselves  had,  and  have,  no  consistent 
point  of  view  whence  to  regard  it.  Their  thought  is  mixed. 
They  confuse  the  real  and  the  ideal.  At  one  moment 
Natural  Law  is  high,  and  holy,  and  plain  to  be  seen  by  all 
whose  spiritual  and  mental  eyesight  is  not  dimmed  by  vice 
or  folly.  At  the  next  it  authorizes  slavery,  and  does  not 
condemn  polygamy.3  Translated  into  perfectly  plain  language 
the  greater  part  of  the  arguments  of  those  who  believe  in 
Nature  and  her  Law  would  come  to  this:  “We,  and  sensible 
people  generally,  approve  of  certain  proceedings  as  right, 
and  therefore  they  are  commanded  by  the  law  of  civilized 

1 Be  Jure  Belli  ac  Pads,  I.,  I.,  X. 

3 Ibid.,  II.,  V. 


2 Ibid.,  I.,  I.,  XII. -XI Y. 


THE  HISTORY  OF  INTERNATIONAL  LAW. 


45 


mankind,  and  all  are  bound  to  adopt  them.”  Bluntly  stated 
in  this  fashion,  the  theory  would  command  few  supporters. 
It  is  only  when  it  is  dressed  in  high-sounding  phrases,  such 
as  “ eternal  and  immutable  justice,”  and  “ principles  im- 
planted by  the  Creator  in  the  heart  of  man,”  that  it  becomes 
attractive.  Natural  Law,  as  described  by  Grotius,  may  be 
the  standard  at  which  International  Law  should  aim,  but  it 
certainly  is  not  International  Law.  Indeed,  the  boasted 
agreement  of  all  men  with  regard  to  it  never  existed,  even 
among  philosophers.  Grotius  held  that  it  was  based  upon 
man’s  social  instincts  and  capacity  for  discovering  and  acting 
upon  general  principles.  Hobbes  argued  that  by  nature  man 
was  an  anti-social  animal,  who  fought,  and  bit,  and  devoured 
his  fellows.1  Grotius  declared  that  God  Himself  could  not 
alter  Natural  Law.  Pufendorf  based  Natural  Law  upon  the 
commands  of  God.2  The  theory  will  not  bear  analysis.  If 
Natural  Law  is  but  another  name  for  the  sense  of  right 
which  grows  as  man  progresses,  and  sets  before  him  through 
the  ages  an  ideal  of  life  and  conduct  ever  increasing  in 
nobility,  let  us  place  it  where  it  properly  belongs,  in  the 
Science  of  Ethics  ; but  let  us  not  attempt  to  thrust  it  into 
J urisprudence,  and  confuse  our  minds  by  speculating  upon  it 
as  if  it  were  a branch  of  law.  Doubtless,  men  do  often 
observe  rules  which  they  ought  to  observe ; but,  neverthe- 
less, the  arguments  which  convince  us  that  a rule  is  right 
are  quite  distinct  from  the  researches  which  show  us  that  it 
is  part  of  human  law  and  the  classifications  which  determine 
its  proper  place  among  other  rules  of  a similar  kind. 

§35. 

The  theory  of  a State  of  Nature  was  generally  held  along 
with  the  theory  of  a Law  of  Nature.  It  was  believed  that 
there  had  once  existed  on  the  earth  a time  when  organized 

1 Elements  of  Law,  Ch.  XIV. 

2 Law  of  Nature  and  Nations,  Bk.  II..  Ch.  iii. , § 20. 


46 


THE  HISTORY  OP  INTERNATIONAL  LAW. 


The  connection 
between  the 
theory  of  a State 
of  Nature  and 
the  theory  of  a 
Law  of  Nature. 

These  rules 


political  societies  were  not  yet  formed,  and  each  individual 
was  at  liberty  to  do  what  was  right  in  his 
own  eyes,  unrestrained  by  human  law.  In  this 
condition  men  obeyed  a few  just  and  simple 
rules  discovered  by  their  own  unassisted  reason, 
were  called  Natural  Law,  because  they  were 
implanted  by  Nature  in  the  breast  of  each  individual,  and  did 
not  depend  for  their  obligation  on  the  sanctions  of  any  ex- 
ternal authority.  The  details  of  the  picture  varied  according 
to  the  taste  of  the  writers.  No  two  descriptions  of  the  State 
or  Law  of  Nature  were  exactly  alike ; but  every  one  agreed 
in  asserting  that  it  was  impossible  to  doubt  their  existence. 
From  various  indications  it  seems  clear  that  Grotius  shared 
the  common  belief  of  his  day  as  to  the  condition  of  the  human 
race  in  its  infancy ; but  he  certainly  did  not  put  it  promi- 
nently forward  in  his  account  of  Natural  Law,  or  base  upon 
it  an  argument  for  the  applicability  of  that  law  to  matters 
international.  This  was  done  by  his  successors ; and  if  we 
accept  their  premises,  it  is  difficult  to  reject  their  conclusion. 
They  argued  that  since  man,  when  he  had  no  government 
over  him  to  set  him  laws,  found  rules  for  his  conduct  in  the 
dictates  of  Nature,  independent  states,  being  permanently  in 
the  position  of  having  no  common  superior,  were  permanently 
bound  by  Natural  Law.  The  whole  theory  is  false  and  un- 
historical.  There  never  was  a time  when  each  man  lived  his 
own  individual  life,  without  connection  with  his  fellows,  and 
without  feeling  the  yoke  of  any  external  authority.  The 
more  we  are  able  to  discover  about  the  facts  of  primitive 
society,  the  more  clear  does  it  become  that  primeval  man  was 
subject  to  numerous  and  galling  restrictions  in  every  depart- 
ment of  life.  Custom  and  superstition  environed  him  like 
an  atmosphere.  He  could  not  escape  from  their  pressure, 
and  he  had  no  wish  to  do  so.  The  picture  of  the  primitive 
savage  as  a being  absolutely  free  to  follow  his  own  impulses 
and  determine  his  own  lot  is  historically  false  ; just  as  the 
picture  of  him  as  an  individual  endowed  with  lofty  senti- 


THE  HISTORY  OF  INTERNATIONAL  LAW. 


47 


ments,  and  exercising  a calm  and  passionless  reason  to  dis- 
cover the  best  rules  of  human  conduct,  is  psychologically 
foolish. 


§36. 


But  untenable  as  is  the  theory  of  a Law  of  Nature,  whether 
or  no  it  be  linked  with  the  twin  theory  of  a State  of  Nature, 
it  performed  a great  service  to  humanity  when  The  effect  of  the 
it  induced  the  statesmen  and  rulers  of  the  obtain^gacVep- 
seventeenth  century  to  accept  the  system  of  |mprovedainter- 
International  Law  put  forth  by  Hugo  Grotius.  natlonalLaw- 
They  had  all  been  taught  that  Natural  Law  was  specially 
binding  in  its  character,  and  believed  that  men  could  not 
violate  it  without  sinking  to  the  level  of  the  beasts.  When 
they  found  it  applied  by  a great  thinker  to  the  regulation  of 
international  relations,  and  discovered  that,  so  applied,  it 
forbade  the  practices  of  which  they  were  more  than  half 
ashamed,  and  placed  restraints  upon  that  unchecked  fury 
which  had  turned  central  Europe  into  a veritable  pande- 
monium, they  were  disposed  to  welcome  and  adopt  it.  The 
times  were  out  of  joint.  The  old  principles  which  had  regu- 
lated the  state  relations  of  mediaeval  Christendom  were  dead. 
The  attempt  to  get  on  without  any  principles  at  all  had  been 
a costly  and  bloodstained  failure.  New  principles  were  pre- 
sented, clothed  with  all  the  authority  of  admitted  theory. 
It  is  not  to  be  wondered  at  that  they  were  eagerly  received, 
and  became  in  a short  time  the  foundations  of  a new  inter- 
national order.  In  so  far  as  they  are  theoretical  and  con- 
nected with  Nature  and  Natural  Law  we  have  already 
examined  them  and  found  them  to  be  wanting.  But  we 
have  yet  to  discuss  them  on  their  practical  side,  and  in  this 
aspect  we  shall  discover  that  they  are  worthy  of  the  highest 
admiration. 

§ 37. 

The  great  practical  principle  of  Grotius  was  the  indepen- 
dence of  sovereign  states.  He  gave  up,  even  in  theory,  the 


48 


THE  HISTORY  OF  INTERNATIONAL  LAW. 


worn-out  doctrine  of  a temporal  and  a spiritual  head  of 
Christendom.  There  was  no  common  superior, 

Grotius  insists  on 

the  independence  whether  Emperor  or  Pope,  with  a rierht  to  exact 

of  states  and  the  . r ^ 

territorial  sover-  obedience  from  the  nations.1  Each  state  was 

eignty  of  rulers. 

absolutely  independent  of  any  external  human 
authority,  and  as  a corollary  all  were  equal  before  the  law 
which  Nature  and  common  consent  imposed.  This  is  the 
fundamental  doctrine  of  modern  International  Law.  We 
speak  of  a family  of  nations,  a society  of  independent  units 
termed  states,  where  our  ancestors  spoke  of  a world-empire 
and  a world-church ; and  we  look  for  the  rules  of  our  society 
in  the  express  or  tacit  consent  of  the  units  of  which  it  is 
composed,  whereas  they  looked  to  the  decisions  of  some 
mighty  head,  armed  by  heaven  itself  with  either  the  temporal 
or  the  spiritual  sword. 

The  second  of  the  great  practical  principles  which  form 
the  basis  of  International  Law  as  we  understand  it  is  the 
doctrine  of  territorial  sovereignty.  This  was  not  introduced 
into  the  science  by  Grotius.  As  we  have  already  seen,2  it 
was  due  to  feudalism,  which  associated  political  rights  and 
duties  with  the  possession  of  a portion  of  the  earth’s  surface. 
But  the  Grotian  system  took  away  from  it  those  limitations 
which  had  done  much  to  soften  its  application  in  mediaeval 
times.  The  power  of  a feudal  lord  was  bounded  not  only  by 
the  rights  of  his  superior,  if  he  had  one,  but  also  by  the  rights 
of  those  who  held  their  land  of  him.  The  relation  between 
them  was  a legal  one,  based  upon  contract,  and  involving 
mutual  rights  and  obligations  which  the  inferior  as  well  as 
the  superior  could  test  in  a court  of  law.  Modern  Inter- 
national Law,  on  the  other  hand,  regards  sovereigns,  or,  in 
other  words,  supreme  governments,  as  absolute  owners  of  the 
state’s  territory  in  their  relations  with  each  other,  however 
restricted  their  power  may  be  with  regard  to  the  land  of  their 
subjects  in  all  internal  transactions.  A ruler  who  cannot 
take  an  inch  of  ground  from  the  humblest  of  his  subjects  to 

1 De  Jure  Belli  ac  Pads , II. ; XXII.,  xiii.  and  xiv.  2 See  § 28. 


THE  HISTORY  OF  INTERNATIONAL  LAW. 


49 


round  off  his  own  domain,  may  cede  a whole  province  to  a 
brother  ruler  without  any  regard  for  the  wishes  of  its  inhab- 
itants, though  Grotius  denied  that  he  possessed  this  power 
unless  his  kingdom  was  patrimonial.1  In  all  transactions 
between  states  where  cession  of  territory  is  involved,  whether 
the  transfer  be  just  and  necessary  or  selfish  and  uncalled- 
for,  the  documents  are  worded  as  if  the  lands  in  question 
belonged  to  the  rulers  in  absolute  proprietorship.  In  states 
where  government  is  carried  on  by  consent  of  the  governed, 
this  is  no  more  than  a legal  form,  since  so  important  an  act 
as  the  acquisition  or  cession  of  territory  is  not  likely  to  be 
performed  without  at  least  the  acquiescence  of  the  people. 
But  it  is  hardly  possible  to  avoid  the  conclusion  that  the 
simplification  of  the  doctrine  of  territorial  sovereignty,  by 
taking  away  from  it  all  qualifying  elements,  did  something 
to  help  on  the  development  of  autocratic  notions  of  govern- 
ment. It  is  powerless  for  evil  now,  for  all  it  means  is  that 
the  proper  organ  of  the  state  should  speak  on  its  behalf ; but 
was  it  quite  so  harmless  in  the  age  of  Louis  XIV.?  In  exter- 
nal matters  to-day  the  doctrine  does  little  more  than  provide 
appropriate  forms  for  solemn  international  acts,  but  it  has  an 
internal  aspect  also,  on  which  we  will  for  a moment  proceed 
to  dwell.  In  this  connection  it  deals  with  jurisdiction,  and 
asserts  that  the  local  sovereign  has  authority  over  all  persons 
and  things  within  his  territory.  How  important  this  asser- 
tion is,  and  how  closely  it  affects  countless  matters  of  every- 
day life,  we  shall  see  when  we  come  to  deal  with  the  subject 
of  a state’s  jurisdictional  rights.2  Meanwhile  we  will  en- 
deavor to  discover  why  the  principle  of  territorial  sover- 
eignty came  to  receive  the  vast  extension  of  which  we  have 
been  speaking. 

§ 38. 

The  solution  of  the  problem  propounded  above  is  to  be 
found  in  the  resort  of  Grotius  to  Roman  Law  for  many  of  the 

1 Be  Jure  Belli  ac  Pads,  I.,  III.,  xii.-xiii.  2 See  §§  113-119. 


50 


THE  HISTORY  OF  INTERNATIONAL  LAW. 


rules  of  his  international  system.  It  had  influenced  the 
ideas  of  the  Middle  Ages  as  to  the  relations  of  states ; 

The  rules  laid  but  Power  was  felt  chiefly  within  the  Holy 
t*ithnre4rf  todo-  Roman  Empire,  whose  lawyers  deemed  that  the 
from0theWRroraanen  unlimited  authority  given  to  the  Caesars  by 
the  Jus  Civile  belonged  of  right  to  every  Em- 
peror who  had  been  crowned  and  anointed  in  the  city  of  the 
seven  hills.  This  notion  ceased  to  regulate  the  intercourse  of 
commonwealths  in  proportion  as  they  succeeded  in  obtaining 
a practical  freedom  from  imperial  authority,  and  when  the 
doctrine  of  a common  superior  perished  out  of  the  interna- 
tional code,  there  was  no  further  use  for  rules  which  implied 
its  existence.  But  the  man  who  expelled  them  from  the  ex- 
ternal politics  of  Christendom,  introduced  at  the  same  time  a 
mass  of  rules  drawn  from  another  portion  of  the  Roman  legal 
system.  Caesar’s  power  was  defined  by  the  Jus  Civile.  Gro- 
tius  laid  the  Jus  Grentium  under  contribution.  We  cannot 
here  enter  into  the  disputed  question  of  the  exact  meaning 
attached  by  the  Roman  lawyers  to  this  famous  phrase ; 1 and 
till  that  question  is  satisfactorily  settled,  it  will  be  impossible 
to  decide  whether  Grotius  did,  as  Sir  Henry  Maine  asserts,2 
borrow  from  the  Jus  Grentium,  under  the  mistaken  impres- 
sion that  it  was  a body  of  rules  framed  for  the  regulation  of 
international  concerns,  and  based  upon  Natural  Law,  or 
whether,  as  other  writers  claim,3  he  regarded  it  as  Universal 
Law,  based  upon  the  precepts  of  reason,  and  was  right  in  so 
doing.  Certain  it  is  that  he  adopted  into  his  system  rule 
after  rule  of  the  Jus  Grentium , and  declared  that  they  were 
part  of  that  Natural  Law  which  all  mankind  were  bound  to 
obey.  Rightly  or  wrongly,  the  Roman  Law  of  Nations  was 
used  to  build  the  fabric  of  the  Grotian  Law  of  Nature.  It  is 

1 An  examination  of  the  views  of  modern  scholars  will  be  found  in  the 
Journal  of  Philology,  Vol.  XIII.,  No.  26,  in  an  article  on  Jus  Gentium,  by 
Professor  Nettleship. 

2 Ancient  Law,  Ch.  IV. 

3 e.g.  Walker,  Science  of  International  Law , Ch.  IV. 


THE  HISTORY  OF  INTERNATIONAL  LAW. 


51 


of  little  moment  to  students  of  International  Law  whether 
the  materials  were  taken  under  a misapprehension  of  the 
meaning  of  a Latin  phrase,  or  whether  their  appropriator 
was  grammatically  and  logically* justified  in  laying  his  hands 
upon  them.  The  important  point  for  us  is  that  he  took  them. 
They  became  part  and  parcel  of  his  system,  and  his  system  be- 
came the  public  law  of  the  civilized  world.  Now,  the  Jus 
Gentium  regarded  ownership  as  absolute.  Proprietors  under 
it  possessed  their  lands  by  as  unrestricted  a right  as  they  pos- 
sessed their  money  or  their  clothes.1  The  thing  itself  was 
theirs,  not  a greater  or  less  interest  in  it.  Forms  of  limited 
ownership  existed,  but  they  were  regarded  as  exceptional. 
The  typical  Roman  proprietor  was  the  dominus , and  his  rights 
were  absolute  and  complete.  Grotius  applied  to  international 
transactions  the  rules  which  in  Roman  Law  governed  the  ac- 
quisition of  private  property,  and  thus  deprived  the  notion  of 
territorial  sovereignty  of  its  ancient  checks  and  limitations. 
At  the  same  time  and  by  the  same  means  he  furnished  the 
rulers  of  Europe  with  instruments  for  dealing  with  a set  of 
new  problems  which  were  daily  becoming  more  urgent. 


§39. 

The  discovery  of  America  had  resulted  in  a vigorous 
scramble  for  its  territories  among  the  maritime  nations  of 
the  Old  World.  Spaniards,  French,  English,  and 

-n  . • » i . . . ...  . The  Roman  Law 

Dutch  fought,  annexed,  and  colonized,  wher-  principle  of 
ever  the  skill  of  their  seamen  and  the  valor  of  vided  rules  for  the 

. ....  . . _ acquisition  of  ter- 

their  explorers  carried  their  national  ttag'S.  I hev  rftory  in  the  New 
1 & , world. 

claimed  enormous  tracts  of  country  on  the 
slightest  pretexts,  and  settled  their  disputes  upon  the  spot  by 
surprises  and  massacres.  The  scanty  international  code  of 
the  Middle  Ages  could  deal  with  questions  of  vassalage  and 
supremacy,  and  settle  the  legal  effects  of  the  conquest  or 
cession  of  territory ; but  it  was  powerless  to  decide  what  acts 

1 Justinian,  Institutes , II.,  i. ; Gaius,  Institutes , II.,  §§  40-96  ; Austin, 
Jurisprudence,  II.,  817-818. 


52  THE  HISTORY  OF  INTERNATIONAL  LAW. 

were  necessary  in  order  to  obtain  dominion  over  newly  dis- 
covered territory,  or  how  great  an  extent  of  country  could  be 
acquired  by  one  act  of  discovery  or  colonization.  Questions 
of  this  kind  had  never  agitated  mediaeval  Europe,  because  all 
the  territory  with  which  its  rulers  had  any  practical  concern 
was  already  possessed  by  states  sufficiently  alike  in  sentiment 
and  organization  to  be  capable  of  entering  into  mutual  rela- 
tions. The  discovery  of  a new  continent  by  Columbus  and 
his  successors  brought  them  to  the  front ; and  the  convenient 
doctrine  that  Christian  states  might  possess  themselves  of  the 
lands  of  the  heathen  and  the  infidel  deprived  the  inhabi- 
tants of  these  vast  territories  of  all  right  to  consideration, 
even  when,  like  the  Peruvians  and  the  Mexicans,  they  had 
developed  for  themselves  a complex  and  striking  civiliza- 
tion. Grotius  found  in  the  Jus  Gentium  a number  of  rules 
dealing  with  what  were  called  Natural  Modes  of  Acquisition, 
and  applied  them  to  the  problems  of  annexation  and  settle- 
ment. The  Roman  lawyers  held  that  res  nullius  were  natu- 
rally acquired  by  occupation  under  which  term  they  included 
both  the  physical  act  of  seizing  the  thing,  and  the  mental  act 
of  intending  to  keep  it  as  one’s  own.  Among  res  nullius 
they  reckoned  islands  rising  in  the  sea.1  Grotius  had  only 
to  turn  to  his  authorities,  and  he  was  ready  with  a number 
of  rules  of  acquisition  obtained,  as  he  and  his  readers  be- 
lieved, from  Natural  Law,  but  really  a transcript  of  those 
parts  of  the  law  of  Rome  which  regulated  private  owner- 
ship amid  the  conditions  due  to  the  volcanic  changes  so  com- 
mon in  ancient  Italy.2  The  new  rules  raised  at  least  as  many 
questions  as  they  solved ; but  it  was  a triumph  to  have  in- 
duced the  colonizing  nations  to  appeal  to  anything  beyond 
brute  force. 

§40. 

Much  of  the  Grotian  system  had  existed  before  the  time  of 
Grotius.  He  gave  shape  and  symmetry  to  fugitive  ideas  and 


1 Justinian,  Institutes,  II.,  i.,  22. 


2 De  Jure  Belli  ac  Pads,  II.,  III. 


THE  HISTORY  OF  INTERNATIONAL  LAW. 


53 


worked  out  in  detail  rules  and  principles  which  others  had 
propounded  in  a disconnected  and  fragmentary  The  principles  of 
condition.  His  great  book  is  one  of  the  few  that  °7hlupeacTofhe<’ 
may  be  said  to  have  altered  the  history  of  the  WestPhaha- 
world.  The  cruel  customs  of  warfare  in  vogue  when  he 
wrote  were  rapidly  superseded  by  the  humaner  precepts 
he  laid  down.  The  difference  between  the  conduct  of  troops 
and  commanders  in  the  Thirty  Years  War  and  in  the  War 
of  the  Spanish  Succession  is  like  the  difference  between 
darkness  and  light;1  and  it  is  mainly  due  to  the  fact  that  in 
the  interval  of  half  a century  between  the  two  world-con- 
flicts, the  exiled  Dutch  jurist  had  become  the  great  authority 
upon  the  regulation  of  international  affairs.  The  principles 
he  laid  down  achieved  a rapid  triumph.  The  Peace  of 
Westphalia  of  1648  is  the  monument  of  their  earliest  vic- 
tory. It  was  the  first  of  that  series  of  great  public  instru- 
ments which  have  regulated  the  state-system  of  Europe  down 
to  our  own  time.  It  recognized  the  independence  of  each 
separate  state,  even  within  the  boundaries  of  the  Empire. 
The  equality  of  states  and  the  territorial  character  of  sov- 
ereignty were  ideas  involved  in  the  arrangements  that  it 
made,  and  it  showed  the  possibility  of  settling  the  gravest 
disputes  between  nations  by  mutual  agreement  arrived 
at  through  the  machinery  of  a congress,  and  embodied  in 
comprehensive  treaties. 

§ 41. 

Since  1648  modern  International  Law  has  had  no  rival 
system  to  contend  with.  It  has  been  enriched  by  many  new 
rules,  and  some  of  its  original  precepts  have  since  ms  inter- 

, , tic  ,,  national  Law  has 

given  place  to  others  generalized  from  the  developed  on  the 

, , . ° . lines  laid  down 

changed  practice  of  modern  times.  Put  the  byGrotius. 
continuity  of  its  life  has  never  been  broken,  and  there  seems 
no  prospect  of  any  revolutionary  change  passing  over  it. 

1 Bernard,  Paper  on  “ Growth  of  the  Laws  of  War,”  in  Oxford  Essays  for 
1856,  pp.  100-104. 


54 


THE  HISTORY  OF  INTERNATIONAL  LAW. 


Perhaps  the  most  important  chapter  that  has  been  added  to 
it  is  one  which  deals  with  the  rights  and  duties  of  neutrals. 
Grotius  left  that  portion  of  his  subject  very  incompletely 
worked  out,  and  for  a long  time  the  practice  of  nations 
showed  conclusively  that  they  felt  themselves  bound  in  the 
matter  by  no  clearly  defined  rules.  Even  now,  though  the 
rights  of  a neutral  state  can  be  formulated  with  tolerable 
precision,  its  duties  are  very  difficult  to  define.  A detailed 
account  of  the  growth  of  International  Law  during  the  past 
three  centuries  would  fill  a lengthy  volume.  It  is  impossible 
to  attempt  anything  of  the  kind  within  the  limits  of  the 
present  treatise.  The  great  fundamental  principles  of 
national  independence  and  state  sovereignty  still  meet  with 
universal  acceptance ; and,  though  the  theory  of  a Law  of 
Nature  has  been  discredited  owing  to  the  attacks  of  histori- 
cal and  analytical  jurists,  the  system  of  Grotius  rests  secure 
upon  the  alternative  foundation  of  general  consent.  Slowly, 
and  almost  imperceptibly,  additions  are  made  to  it,  as  the 
public  opinion  of  the  civilized  world  decides  new  cases,  or 
grows  to  greater  heights  of  humanity  and  justice.  Perhaps 
the  careful  student  will  be  able  to  discern  something  of  the 
process  of  its  development  as  he  reads  in  the  following  pages 
a brief  outline  of  its  present  rules. 


CHAPTER  IV. 


THE  SUBJECTS  OF  INTERNATIONAL  LAW. 

§ 42. 

The  meagre  proposition  that  the  Subjects  of  International 
Law  are  Sovereign  States  is  often  put  forward  as  if  it  con- 
tained all  the  information  that  need  be  given 
about  the  matter.  But  while  Sovereign  States  ofStinteraationaicts 
are  by  far  the  most  important  class  among  the  La"' 
units  to  which  our  science  applies,  there  are  other  communities 
which  come  under  its  rules  to  a greater  or  less  extent,  and  in 
some  cases  corporations  and  individuals  are  subject  to  it.  Even 
with  regard  to  Sovereign  States  themselves  a great  deal  has 
to  be  said  before  the  fact  of  their  subjection  to  International 
Law  can  be  fully  explained  and  exhibited  in  all  its  aspects. 

It  will  be  best  to  take  the  various  classes  of  subjects  sepa- 
rately and  deal  with  each  in  turn.  We  shall  have  to  consider 
the  following  list : — 

(1)  Sovereign  States. 

(2)  Part- Sovereign  States. 

(3)  Civilized  Belligerent  Communities  not  being  States. 

(4)  Corporations. 

(5)  Individuals. 

All  these  are  subjects  of  International  Law,  some  fully, 
others  only  to  a small  degree  and  in  exceptional  circum- 
stances. An  attempt  will  be  made  in  this  chapter  to  explain 
the  relation  in  which  each  stands  to  the  public  law  of  the  civil- 
ized world. 


55 


56 


THE  SUBJECTS  OF  INTERNATIONAL  LAW. 


§ 43. 

We  begin  with  Sovereign  States.  In  order  clearly  to  un- 
derstand their  nature  and  the  nature  of  their  subjection  to 

International  Law,  it  will  be  necessary  to  pass 

Sovereign  States.  . J L 

through  an  ascending  series  of  conceptions,  be- 
ginning  with  the  comparatively  rudimentary  one  of  a state. 
A state  may  be  defined  as  A political  community , the  mem- 
bers of  which  are  bound  together  by  the  tie  of  common  subjection 
to  some  central  authority , ivhose  commands  the  bulk  of  them 
habitually  obey.  This  central  authority  may  be  vested  in  an 
individual  or  a body  of  individuals  ; and,  though  it  may  be 
patriarchal,  it  must  be  something  more  than  parental ; for  a 
family  as  sucii  is  not  a political  community  and  therefore  not 
a state.  The  methods  by  which  the  central  authority  is 
created  are  outside  our  present  subject.  Whether  a political 
community  is  governed  by  a line  of  hereditary  monarchs,  or 
by  persons  elected  from  time  to  time  by  the  votes  of  a greater 
or  less  number  of  its  members,  it  is  a state  provided  that  the 
obedience  of  the  bulk  of  the  people  is  rendered  to  the  authori- 
ties. If  there  is  no  such  obedience,  there  is  anarchy;  and  in 
proportion  as  obedience  is  lacking  the  community  runs  the 
risk  of  losing  its  statehood.  A mere  administrative  division 
of  a greater  whole,  such  as  a French  Department  or  an  Eng- 
lish County,  would  not  be  called  a state ; but  we  should  not 
refuse  the  title  to  a community  like  Canada  which  is  not  en- 
tirely free  from  political  subjection,  though  we  should  prob- 
ably indicate  the  absence  of  complete  self-government  by 
speaking  of  it  as  a Dependent  State. 

We  have  seen  what  is  meant  by  a state.  If  we  add  to  the 
marks  already  given  in  our  definition  of  it,  the  further  mark 
that  the  body  or  individual  who  receives  the  habitual  obedi- 
ence of  the  community  does  not  render  the  like  obedience  to 
any  earthly  superior,  we  arrive  at  the  conception  of  a Sover- 
eign or  Independent  State,  which  possesses  not  only  internal 
sovereignty,  or  the  power  of  dealing  with  domestic  affairs, 


THE  SUBJECTS  OF  INTERNATIONAL  LAW. 


57 


but  external  sovereignty  also,  or  the  power  of  dealing  with 
foreign  affairs.  The  commonwealths  which  compose  the 
American  Union  possess  all  the  features  we  have  enumerated 
as  the  distinguishing  marks  of  states.  They  are,  therefore, 
rightly  so  called  ; but  historical  and  political  reasons  have 
sometimes  caused  them  to  be  alluded  to  as  Sovereign  States. 
Strictly  speaking,  this  is  a mistake.  By  the  Constitution  of 
the  United  States  all  dealings  with  foreign  powers  are  left  to 
the  central  government.  The  Executive  and  Legislature  of 
any  and  every  state  in  the  Union  are  devoid  of  the  slightest 
power  to  act  in  these  matters,  and  have  to  submit  to  what  is 
done  by  the  authorities  at  Washington.  They  have  none  of 
the  attributes  of  external  sovereignty.  They  cannot  make 
war  or  peace,  nor  can  they  send  agents  to  foreign  powers  or 
receive  agents  from  them.  In  other  words,  they  are  states, 
but  they  are  not  Sovereign  States. 

But  it  is  not  necessary  in  order  that  a society  may  be  a 
Sovereign  State  that  its  ruler  or  rulers  should  never  submit 
to  the  will  of  others.  In  fact,  the  most  powerful  empires  in 
the  world  frequently  modify  their  course  of  action  in  defer- 
ence to  the  wishes  of  neighboring  states  ; and  no  one  dreams 
of  asserting  that  they  lose  their  independence  thereby.  It  is 
only  when  such  submission  becomes  habitual  that  the  state 
so  hampered  ceases  to  be  fully  sovereign.  When  Russia,  for 
instance,  in  1878,  consented  to  take  back  the  Treaty  of  San 
Stefano,  which  she  had  made  separately  with  Turkey,  and  to 
allow  all  the  Great  Powers  to  settle  the  questions  at  issue  in 
the  East  by  an  instrument  negotiated  at  Berlin,  she  did  noth- 
ing to  impair  her  sovereignty.  But  if  it  were  part  of  the 
public  law  of  Europe  that  every  treaty  made  by  Russia  must 
be  referred  to  an  European  Congress,  it  would  be  impossible 
to  regard  her  as  a fully  independent  state.  The  characteris- 
tics, therefore,  of  a Sovereign  State  are  two.  Its  government 
must  receive  habitual  obedience  from  the  bulk  of  the  people 
and  it  must  not  render  habitual  obedience  to  any  earthly 
superior. 


58 


THE  SUBJECTS  OE  INTERNATIONAL  LAW. 


§44. 

But  before  a Sovereign  State  can  become  a Subject  of  In- 
ternational Law  it  must  possess  other  marks  in  addition  to 
Only  the  more  civ-  those  we  have  just  enumerated.  A wandering 
sta^es^are6 subjects  tribe  with  no  fixed  territory  to  call  its  own 

of  International 

Law.  might  nevertheless  obey  implicitly  a chief  who 

took  no  commands  from  other  rulers.  A race  of  savages 
settled  on  the  land  might  be  in  the  same  predicament. 
Even  a mere  fortuitous  concourse  of  men,  like  a band  of 
pirates,  might  be  temporarily  under  the  sway  of  a chief  with 
unrestricted  power ; or  a very  minute  group  ruled  in  civil- 
ized fashion  might  exist  in  some  remote  corner  of  the  globe. 
Yet  none  of  these  communities  would  be  subject  to  Inter- 
national Law,  because  they- would  want  various  characteris- 
tics, which,  though  not  essential  to  sovereignty,  are  essential 
to  membership  in  the  family  of  nations.  For  there  are  many 
communities  outside  the  sphere  of  International  Law,  though 
they  are  independent  states.  They  neither  grant  to  others, 
nor  claim  for  themselves  the  strict  observance  of  its  rules. 
Justice  and  humanity  should  be  scrupulously  adhered  to  in 
all  dealings  with  them,  but  they  are  not  fit  subjects  for  the 
application  of  legal  technicalities.  It  would,  for  instance, 
be  absurd  to  expect  the  king  of  Dahomey  to  establish  a 
Prize  Court,  or  to  require  the  dwarfs  of  the  central  African 
forest  to  receive  a permanent  diplomatic  mission.  Since 
then  there  are  in  existence  communities  which  have  all  the 
attributes  of  independence,  and  yet  are  not  received  into 
the  family  of  nations,  it  is  necessary  to  inquire  what  further 
marks  a community  must  possess,  over  and  above  the  marks 
of  sovereignty,  before  it  can  take  its  place  among  those 
states  whose  intercourse  is  regulated  by  the  highly  devel- 
oped system  of  rules  which  we  call  International  Law.  It 
is  evident,  in  the  first  place,  that  a certain  degree  of  civiliza- 
tion is  necessary,  though  it  is  difficult  to  define  the  exact 
amount.  The  strongest  evidence  of  the  willingness  of  some 


THE  SUBJECTS  OF  INTERNATIONAL  LAW. 


59 


enlightened  chief  of  South  Sea  Islanders  to  conform  to  civil- 
ized usages  in  the  matter  of  international  intercourse  would 
in  all  probability  be  insufficient  to  induce  the  governments 
of  Europe  and  America  to  deal  with  him  as  they  deal  with 
one  another.  On  the  other  hand,  Turkey,  China,  and  Japan 
were  formally  placed  under  International  Law  as  soon  as 
they  expressed  a desire  to  submit  themselves  to  it.  In  mat- 
ters of  this  kind,  no  general  rule  can  be  laid  down.  The 
area  within  which  the  law  of  nations  operates  is  supposed 
to  coincide  with  the  area  of  civilization.  To  be  received 
within  it  is  to  obtain  a kind  of  international  testimonial  of 
good  conduct  and  respectability ; and  when  a state  hitherto 
accounted  barbarous  desires  admission,  the  leading  powers 
settle  the  case  upon  its  merits.  In  addition  to  the  attain- 
ment of  a certain,  or  rather  an  uncertain,  amount  of  civiliza- 
tion, a state  must  have  possession  of  a fixed  territory  before 
it  can  obtain  the  privilege  of  admission  into  the  family  of 
nations.  The  rules  of  modern  International  Law  are  so  per- 
meated from  end  to  end  with  the  idea  of  territorial  sover- 
eignty that  they  would  be  entirely  inapplicable  to  any  body 
politic  that  was  not  permanently  settled  upon  a portion  of 
the  earth’s  surface  which  in  its  collective  capacity  it  owned. 
Even  if  we  could  suppose  a nomadic  tribe  to  have  attained 
the  requisite  degree  of  civilization,  its  lack  of  territorial 
organization  would  be  amply  sufficient  to  exclude  it  from 
the  pale  of  International  Law.  But  a civilized  and  inde- 
pendent community,  settled  upon  a tract  of  land,  may  be  so 
small  that  it  would  be  absurd  to  clothe  it  with  the  rights 
and  obligations  given  by  the  law  of  nations  to  Sovereign 
States.  Such  a minute  community  might  exist  unnoticed 
in  some  distant  corner  of  the  world.  This  is  actually  the  case 
with  the  inhabitants  of  Pitcairn  Island,1  a little  rock  in  the 
South  Pacific,  peopled  by  a few  score  descendants  of  the  muti- 

1 Pitcairn  Island  is  now  a part  of  the  British  Empire,  Being  under  the 
supervision  of  the  Governor  of  New  South  Wales.  But  the  inhabitants 
practically  manage  their  own  concerns ; and  their  connection  with  the  mother 
country  is  maintained  by  an  occasional  visit  from  a British  man-of-war. 


60 


THE  SUBJECTS  OF  INTERNATIONAL  LAW. 


neers  of  the  Bounty,  who  settled  upon  it  in  1790.  Here  we 
have  a community  which  possesses  a fixed  territory  ; but  it 
is  so  small,  so  remote,  and  so  unimportant,  that  it  remains  un- 
noticed by  civilized  states,  except  for  an  occasional  visit  from 
one  of  their  ships.  When  such  communities  exist  in  close 
contiguity  to  larger  political  bodies,  they  are  soon  absorbed 
altogether,  or  reduced  to  a position  of  dependence,  or  perhaps 
united  with  similar  communities  in  a Confederation.  When 
they  are  far  away  from  the  main  currents  of  political  and 
commercial  life,  they  are  allowed  to  rest  unnoticed  and  undis- 
turbed. A bod}r  politic  completely  supreme  over  all  its  mem- 
bers, and  subject  to  no  external  authority,  must  have  reached 
a certain  degree  of  civilization,  have  ceased  to  be  nomadic 
and  become  owner  of  a fixed  territorj",  have  provided  for  the 
continuity  of  its  existence,  and  have  attained  a certain  size 
and  importance,  before  it  can  be  regarded  as  one  of  those 
Sovereign  States  which  are  Subjects  of  International  Law. 

§ 45. 

The  Sovereign  States  which  are  Subjects  of  International 
Law  are  regarded  as  units  in  their  dealings  with  other  states, 
state-life  and  its  They  are  corporate  bodies,  acting  through  their 
different1  kindT of  governments.  Each  state  is  bound  by  the'  en- 
Confederation.  gagements  entered  into  by  its  rulers  on  its  behalf, 
as  long  as  they  have  been  made  in  accordance  with  its  own 
law  and  constitution.  Other  states  have  no  right  to  dictate 
what  individual  or  body  in  a state  shall  conduct  its  external 
affairs.  As  long  as  there  is  such  an  individual  or  body  of 
individuals,  they  must  transact  their  business  with  him  or 
them.  If  no  such  authority  exists,  they  can  decline  to  trans- 
act business  at  all ; and  if  a state  remains  for  any  length 
of  time  in  such  a condition  of  revolution  or  anarchy  that 
no  one  has  authority  to  speak  on  its  behalf,  it  will  soon 
cease  to  be  a Subject  of  International  Law  in  its  existing 
form,  though  in  all  probability  its  territory  and  people  will 
enter  into  new  combinations  and  still  retain  under  changed 
conditions  some  place  in  the  ranks  of  civilized  states.  The 


THE  SUBJECTS  OF  INTERNATIONAL  LAW. 


61 


continuity  of  a state,  and  consequently  its  liability  to  be 
called  upon  to  fulfil  the  international  obligations  it  has 
contracted,  is  not  affected  by  change  of  government  or  loss 
of  outlying  territory.  But  if  it  splits  up  into  several  states, 
or  is  obliterated  altogether  like  Poland,  or  enters  with  others, 
like  each  of  the  American  colonies  whose  independence  was 
recognized  by  Great  Britain  in  1783,  into  a union  for  the 
formation  of  a new  state,  it  loses  its  corporate  existence  as 
a Subject  of  International  Law.  When  this  happens,  the 
circumstances  of  each  case  decide  what  is  to  become  of  the 
debts  and  other  obligations  with  which  the  lost  state  was 
burdened.  In  some  instances  they  disappear  with  the  body 
corporate  to  which  they  belonged ; in  others  an  equitable 
division  of  them  is  made.  The  law  of  nations  lays  down 
no  clear  rules  with  regard  to  these  matters ; but  it  does 
clearly  say  that  if  a state  desires  to  have  intercourse  with 
other  states,  there  must  be  some  authority  within  it  capable 
of  pledging  it  to  a given  course  of  conduct. 

This  is  true  of  Confederations  no  less  than  of  states  which 
are  organic  wholes  in  their  internal  organization.  Confed- 
erations are  generally  divided  into  two  kinds,  for  neither  of 
which  is  there  a good  term  in  the  English  language.  The 
first,  called  in  German  a Bundesstaat , comprises  those  unions 
in  which  the  central  authority  alone  can  deal  with  foreign 
powers  and  settle  external  affairs,  the  various  members  of 
the  Confederation  having  control  over  their  internal  affairs 
only.  In  the  second,  called  a Staatenbund , are  included  all 
Confederations  where  the  states  which  have  agreed  to  unite 
have  retained  for  themselves  the  power  of  dealing  directly 
with  others  in  some  matters,  the  remaining  external  affairs 
being  reserved  by  the  federal  bond  to  the  central  authority.1 
Unions  of  the  first  kind  have  been  called  Supreme  Federal 
Governments,  unions  of  the  second  kind  Systems  of  Con- 
federated States.2  The  best  examples  of  the  former  now  in 

1 Heffter,  Das  Europdische  Volkerrecht,  §§  20,  21. 

2 Austin,  Jurisprudence,  I.,  264. 


62 


THE  SUBJECTS  OF  INTERNATIONAL  LAW. 


existence  are  the  United  States  of  America  and  the  Swiss 
Confederation.  No  good  example  of  the  latter  remains  to 
the  present  time;  but  the  German  Bund  from  1815  to  1866 
exhibited  to  the  world  in  full  perfection  the  disadvantages 
of  this  kind  of  union.  From  the  point  of  view  of  Inter- 
national Law,  a Bundesstaat  does  not  differ  from  an  ordinary 
Sovereign  State.  It  forms  but  one  state  in  relation  to 
foreign  powers,  though  internally  it  may  consist  of  many 
states.  But  as  these  states  have  no  right  of  sending  and 
receiving  diplomatic  missions,  or  making  peace  or  war, 
foreign  powers  have  as  little  to  do  with  them  as  they  have 
with  the  administrative  divisions  of  an  ordinary  state.  The 
case  of  a Staatenbund  is  different.  It  is  a bundle  of  separate 
states,  each  of  which  retains  some  of  the  rights  of  external 
sovereignty  while  it  is  deprived  of  the  remainder.  Accord- 
ingly the  states  which  compose  it  must  be  placed  by  Inter- 
national Law  among  those  part-sovereign  communities  which 
we  have  to  consider  as  the  second  class  among  its  subjects. 
They  are  something  more  than  administrative  divisions  of  a 
larger  whole.  They  are  something  less  than  Sovereign  States. 

It  is  sometimes  exceedingly  difficult  to  refer  a given  Con- 
federation to  either  of  the  types  depicted  above.  The  Swiss 
Confederation,  for  instance,  was  at  its  inception  a union  of 
the  looser  kind.  It  is  now  a Supreme  Federal  Government, 
or  Bundesstaat.  But  at  certain  periods  of  its  history  it 
could  hardly  have  been  called  one  or  the  other  with  any 
regard  to  accuracy.  At  the  present  time  the  new  German 
Empire,  which  was  constituted  in  1871  in  consequence  of  the 
successful  war  with  France,  is  in  much  the  same  predica- 
ment. The  central  authority  makes  war  and  peace,  sends 
and  receives  ambassadors,  and  negotiates  treaties  for  political 
and  commercial  objects.  But  the  governments  of  some  of 
the  states  which  form  the  empire  have  the  right  of  accredit- 
ing diplomatic  representatives  to  foreign  powers  and  receiv- 
ing representatives  from  them  to  deal  with  matters  not 
reserved  to  the  Imperial  Government.  Moreover,  Bavaria 


THE  SUBJECTS  OF  INTERNATIONAL  LAW. 


63 


and  Saxony  have  ministers  for  foreign  affairs.  Probably  the 
diplomatists  in  question  are  not  overwhelmed  with  work ; 
for  it  is  difficult  to  discover  in  the  Constitution  of  the  Empire 
any  matters  left  for  them  to  deal  with.  But  since  a right 
of  separate  diplomatic  intercourse  with  foreign  powers  is 
vested  in  the  more  important  of  the  federated  states,  we  are 
unable  to  say  that  the , Confederation  is  a true  Bundesstaat, 
however  insignificant  the  deflections  from  that  type  may 
be.  At  the  same  time,  it  is  equally  impossible  to  call  it  a 
Staatenbund,  in  view  of  the  fact  that  for  all  practical  pur- 
poses the  central  authority  alone  transacts  the  external  busi- 
ness of  the  Union.1  There  can,  however,  be  no  doubt  that,  if 
the  Confederation  lasts,  the  subordinate  states  will  rapidly  lose 
whatever  control  over  their  relations  with  foreign  powers  they 
may  still  possess. 

§ 46. 

States  may  be  united  without  being  called  Confederations. 
In  fact,  writers  on  International  Law  generally  enumerate 
a considerable  number  of  such  unions,  and  go  other  unions 
out  of  their  proper  province  to  describe  minutely  bet"een  states' 
the  various  ways  in  which  states  which  once  were  separate 
entities  may  be  brought  together  under  a common  monarchi- 
cal head.  It  is,  however,  obvious  that  such  inquiries  are 
outside  our  subject.  As  long  as  a state  acts  as  a unit  in  its 
dealings  with  other  states,  International  Law  has  no  need  to 
ask  whether  in  internal  affairs  it  is  one  state,  or  two,  or 
a hundred.  For  instance,  the  fact  that  Austria  and  Hun- 
gary possess  separate  internal  administrations  does  not  make 
the  international  position  of  the  Austro-Hungarian  Empire 
different  in  the  slightest  degree  from  that  of  states  like 
France  or  Prussia,  which  are  internally  organic  wholes.  For 
the  purposes  of  International  Law,  it  need  not  be  distin- 
guished from  them  and  put  into  a separate  class  as  what  is 
termed  a Real  Union.  For  the  writer  on  Constitutional  Law 
1 Statesman's  Year  Book  for  IS 94,  pp.  531-534. 


64 


THE  SUBJECTS  OF  INTERNATIONAL  LAW. 


the  distinction  is  important ; but  to  the  publicist  it  is  unnec- 
essary and  unmeaning.  A similar  remark  may  be  applied 
to  the  case  of  Personal  Unions.  These,  strictly  speaking, 
are  not  Unions  at  all.  They  are  said  to  arise  when  the  same 
person  happens  to  be  the  head  of  the  state  in  two  or  more 
independent  political  communities.  But  since  each  of  these 
communities  retains  unimpaired  all  the  powers  of  sover- 
eignty, and  neither  is  legally  affected  in  any  way  by  the 
other  as  regards  its  dealings  with  foreign  powers,  it  is  clear 
that  the  so-called  Union  can  have  no  existence  in  the  eye  of 
International  Law.  The  example  of  a Personal  Union  gen- 
erally given  is  the  case  of  England  and  Hanover  from  the 
accession  of  George  I.  to  the  death  of  William  IV.  During 
that  period  the  King  of  England  was  also  Elector  of 
Hanover  ; .but  each  state  retained  its  separate  and  indepen- 
dent sovereignty.  Except  when  the  French  occupied  Hanover 
in  1803  at  the  outbreak  of  war  with  England,  foreign  powers 
made  no  attempt  to  include  one  in  their  arrangements  with 
regard  to  the  other;  and  as  a matter  of  fact,  Hanover  was 
often  at  peace  while  England  was  at  war.  The  union  of  the 
two  was  a mere  figment.  They  were  as  much  separate  after 
the  House  of  Hanover  obtained  the  throne  of  England  as  they 
were  before.  Just  as  International  Law  ignores  Real  Unions 
because  the  states  joined  together  by  them  are  for  its  pur- 
pose but  one  state,  so  it  ignores  Personal  Unions  because  the 
states  deemed  to  be  united  by  them  are  for  its  purposes 
separate  and  independent  states. 

§ 47. 

We  are  now  able  to  assign  the  different  classes  of  Unions 
international  Law  and  Confederations  their  proper  places  among 
eases  only  when  the  Subjects  of  International  Law.  The  only 
of  the  powers  of  kind  that  requires  to  have  a special  position 
eignty.  given  to  it  is  a Staatenbund  or  System  of  Confed- 

erated States.  In  it  both  the  Union  itself  and  the  separate 


THE  SUBJECTS  OF  INTERNATIONAL  LAW. 


65 


political  communities  which  compose  it  must  be  regarded  as 
being  without  a portion  of  the  full  powers  of  external  sov- 
ereignty, while  they  possess  the  remaining  portion.  They 
will,  therefore,  be  considered  as  a particular  variety  under 
the  head  of  Part-Sovereign  States.  At  present,  our  concern 
is  with  wholly  Sovereign  States.  Among  these,  we  class 
Supreme  Federal  Governments,  Real  Unions,  and  the  states 
that  are  erroneously  supposed  to  be  joined  together  in  Per- 
sonal Unions.  International  Law  can  make  no  distinction 
between  them  and  the  Sovereign  States  which  are  internally 
organic  wholes ; for  it  deals  only  with  external  relations,  and 
does  not  concern  itself  with  internal  organization. 

§ 48. 

But  though,  for  the  reasons  just  given,  we  decline  to  make 
the  distinctions  between  Sovereign  States  usually  made  by 
writers  on  International  Law,  there  is  a distinc-  The  Great  Powers 

, n i i j i • u • .of  Europe  and  the 

tion  hitherto  generally  overlooked,  which  is  most  united  states  of 

. i • . , . America  differ  in 

important  in  itself  and  promises  to  have  most  some  degree  from 
far-reaching  effects.  The  Great  Powers  of  states0  Sovereign 
Europe,  as  they  are  called,  have  gradually  obtained  such  a pre- 
dominant position  as  to  render  untenable  the  proposition  that 
there  is  no  distinction  between  them  and  other  Sovereign 
States  ; and  the  position  they  hold  in  Europe  is  held  by  the 
United  States  on  the  American  continent.  The  doctrine  that 
all  states  are  equal  before  the  law  has  rarely  been  challenged 
since  the  days  when  Grotius  made  it  one  of  the  fundamental 
principles  of  his  system.  It  has  always  been  admitted  that 
the  more  powerful  a state  is  the  more  influential  it  will  be  ; 
but  it  has  been  denied  that  superiority  in  power  and  influence 
gave  it  any  greater  rights  under  International  Law  than  were 
possessed  by  the  smallest  and  weakest  of  independent  politi- 
cal communities.  But  if  the  principles  of  the  law  of  nations 
are  really  to  be  gathered,  as  we  have  been  contending,  from 
the  practice  of  nations,  whenever  that  practice  is  consistent 


66 


THE  SUBJECTS  OF  INTERNATIONAL  LAW. 


and  uniform,  it  is  time  to  alter  our  statement  of  principle  in 
deference  to  the  logic  of  established  facts.  For  during  the 
greater  part  of  the  present  century,  Great  Britain,  France, 
Austria,  Prussia,  and  Russia  have  exercised  a kind  of  superin- 
tendence over  certain  European  questions  under  the  name  of 
the  Great  Powers  ; and  in  1867  Italy  was  invited  to  join  them. 
The  same  period  has  witnessed  the  rise  of  the  United  States 
into  the  position  of  unofficial  leader  and  protector  of  the 
other  independent  republics  of  America.  We  do  not  for  a 
moment  claim  for  the  Great  Powers  of  Europe  or  for  the 
United  States  greater  rights  in  ordinary  matters  than  those 
possessed  by  other  members  of  the  family  of  nations.  Their 
ships  have  no  more  privileges  in  the  ports  of  foreign  countries 
than  the  ships  of  Denmark  or  Greece.  Their  powers  of  juris- 
diction over  foreigners  are  no  greater  than  those  of  Belgium 
or  Honduras.  The  immunities  of  their  diplomatic  ministers 
are  not  one  whit  larger  than  those  of  Portugal  or  Chili. 
International  Law  gives  the  Great  Powers  no  more  rights  in 
their  individual  capacity  than  the  smallest  and  weakest  of 
their  fellows.  But  collectively  they  act  in  the  questions  over 
which  they  have  gained  control  pretty  much  as  the  committee 
of  a club  would  act  in  matters  left  to  it  by  the  rules  of  the 
club.  That  is  to  say,  they  possess  a regulative  authority  and 
are  deemed  to  speak  for  the  whole  body  of  European  states. 
But  in  the  case  of  a club  committee  its  powers  are  granted 
and  defined  by  rules  which  the  members  of  the  club  have 
formally  adopted,  whereas  the  Great  Powers  can  show  in  sup- 
port of  their  authority  only  the  tacit  consent  of  other  states. 
Consequently  its  limits  are  vague  and  indefinite,  and  its  pro- 
cedure is  ill-defined.  But  a review  of  the  international  his- 
tory of  the  century  will  show  that  it  is  none  the  less  real  and 
effective.  When  we  come  to  deal  with  the  Equality  of  States, 
we  shall  endeavor  to  prove  this  proposition  in  detail,  and  also 
to  show  that  what- is  true  in  Europe  of  the  Great  Powers  is 
true  in  America  of  the  United  States.1  Meanwhile,  we 
1 See  §§  135,  136. 


THE  SUBJECTS  OF  INTERNATIONAL  LAW. 


67 


will  divide  the  Sovereign  States  who  are  Subjects  of  Interna- 
tional Law  into  two  classes.  The  six  Great  Powers  and  the 
United  States  of  America  we  place  in  the  first  class,  and  in 
the  second  the  remainder  of  the  body  of  Independent  and 
Sovereign  States.  For  the  reasons  already  mentioned,  we 
regard  as  inapplicable  the  usual  divisions.  Confederations 
and  Unions  either  do  all  their  external  business  through  one 
government,  or  they  do  not.  If  they  do,  they  are  in  the  eye 
of  International  Law  exactly  like  other  Sovereign  States.  If 
they  do  not,  the  political  communities  which  compose  them 
are  either  wholly  independent  or  part-sovereign.  In  no  case, 
are  they  a special  kind  of  Sovereign  State,  requiring  to  be 
distinguished  from  the  rest  by  any  peculiarity  in  their  exter- 
nal relations. 

§49. 

The  questions  connected  with  Part- Sovereign  States  next 
demand  our  attention.  Though,  as  a general  rule,  the 
domestic  government  in  a political  community 
exercises  over  the  members  of  that  community  states°Tereisn 
all  the  powers  of  sovereignty,  it  is  obvious  that 
it  might  exercise  a portion  of  them  only,  the  remainder  being 
vested  in  the  government  of  another  country,  or  given  to 
some  central  authority,  or  even  suspended  altogether.  When 
the  powers  thus  shared  concern  internal  affairs,  International 
Law  has  nothing  to  do  with  the  case  ; neither  has  it  when  the 
home  government  deals  with  internal  affairs,  and  the  other 
government  possesses  complete  control  of  foreign  relations, 
though  both  cases  are  important  to  the  student  of  Constitu- 
tional Law  and  must  be  carefully  classified  by  him.  But 
when  the  external  affairs  of  a community  are  directed  partly 
by  its  domestic  rulers  and  partly  by  the  rulers  of  another 
country,  International  Law  recognizes  in  that  community  a 
state  unlike  fully  independent  states,  seeing  that  the  rulers 
cannot  exercise  all  the  powers  of  external  sovereignty,  and 
yet  capable  of  being  ranked  among  its  subjects,  seeing  that 


68 


THE  SUBJECTS  OF  INTERNATIONAL  LAW. 


the  local  government  does  control  some  portion  of  the  rela- 
tions with  other  states.  Communities  of  this  kind  are  gener- 
ally distinguished  from  independent  states  by  the  epithet 
Semi-Sovereign ; but  as  the  term  seems  to  imply  an  equal 
division  of  the  powers  of  sovereignty  between  the  local  and 
the  foreign  rulers,  we  will  use  instead  the  adjective  Part- 
Sovereign,  since  it  more  correctly  describes  a class  of  com- 
munities in  which  any  proportion  of  the  powers  of  external 
sovereignty,  from  nearly  all  to  almost  none,  may  be  possessed 
by  the  home  government. 

The  Part-Sovereign  States  known  to  International  Law 
may  be  defined  as  Political  Communities  in  which  the  domestic 
rulers  possess  a portion  only  of  the  powers  of  external  sover- 
eignty,, the  remainder  being  exercised  by  some  other  political 
body , or  even  suspended  altogether.  When  a political  com- 
munity is  obliged  to  submit  itself  habitually  in  matters  of 
importance  to  the  control  of  another  state,  it  is  said  to  be 
under  the  suzerainty  of  that  state  and  is  in  a condition  of 
part-sovereignty.  When  a number  of  political  communities 
have  joined  themselves  together  into  that  loose  form  of 
Confederation  which  is  called  a Staatenbund , each  of  the 
states  thus  confederated,  and  also  the  central  authority  of  the 
Confederation,  are,  as  we  have  already  seen,  in  a condition  of 
part-sovereignty.  When  a state  is  neutralized  by  a great 
international  treaty,  and  is  therefore  deprived  of  the  right  of 
making  war  for  any  other  purpose  than  the  defence  of  its 
own  territory  from  attack,  it  is  in  a condition  of  part-sover- 
eignty. We  thus  obtain  three  divisions  of  Part-Sovereign 
States,  and  it  will  be  convenient  to  consider  each  division 
separately.  But  before  we  do  so,  we  must  exclude  altogether 
from  our  classification  such  communities  as  the  Native  States 
of  India  and  the  Indian  tribes  of  North  America.  The  former 
are  sometimes  spoken  of  as  independent  states ; but  in  reality 
they  are  not  even  part-sovereign  in  the  sense  given  to  that 
term  in  International  Law,  for  they  may  not  make  war  or 
peace  or  enter  into  negotiations  with  any  power  except  Great 


THE  SUBJECTS  OF  INTERNATIONAL  LAW. 


69 


Britain.1  The  latter  have  been  adjudged  by  the  United 
States  Supreme  Court  in  the  case  of  the  Cherokee  Nation  v. 
the  State  of  Georgia,  not  to  be  foreign  states,  but  “ domestic 
dependent  nations.” 2 They  cannot  deal  in  any  way  with 
any  power  other  than  the  United  States,  and  consequently 
International  Law  knows  nothing  of  them.  The  same  sen- 
tence of  exclusion  must  be  pronounced  upon  the  tiny  republic 
of  San  Marino  in  Italy.  It  enjoyed  for  centuries  local  self- 
government  under  the  protection  of  the  States  of  the  Church, 
and  in  1862  the  King  of  Italy  took  the  place  they  had  pre- 
viously occupied.  But  it  has  no  foreign  affairs,  and  is 
therefore  for  all  international  purposes  part  of  the  Italian 
kingdom.3 

§50. 


The  relation  of  Suzerain  and  vassal  is  far  less  frequent 
now  than  it  was  before  the  French  Revolution,  when  the 
states  of  the  Holy  Roman  Empire  were  reck-  Communities 
oned  among  political  communities  whose  sov-  undera  sov- 
ereignty was  defective.  They  had,  however,  been  practically 
independent  since  the  Peace  of  Westphalia  in  1648 ; and  the 
dissolution  of  the  Empire  in  1806  was  but  the  last  step  in 
a long  series  of  events  which  had  been  gradually  destroying 
the  authority  of  the  successors  of  Augustus  and  Charle- 
magne. At  the  present  time  the  states  under  the  control 
of  a Suzerain  are  few  in  number.  Most  of  them  are  to  be 
found  among  the  outlying  provinces  of  the  Turkish  Empire. 
The  oppressed  Christian  populations  of  these  districts  have 
from  time  to  tim&  risen  against  the  authority  of  the  Sultan ; 
and  it  has  been  the  policy  of  the  Great  Powers,  to  develop 
in  them  the  faculty  of  self-government  by  compelling  the 
Porte  to  grant  first  local  autonomy,  then  a greater  or  less 
measure  of  liberty  in  dealing  with  external  affairs,  and 


1 Statesman's  Tear  Book  for  1894,  p.  118. 

2 Peters,  Reports  of  the  United  States  Supreme  Court,  V.,  1. 

3 Twiss,  Law  of  Nations , § 36. 


70 


THE  SUBJECTS  OP  INTERNATIONAL  LAW. 


finally  complete  independence.  Thus  the  principalities  of 
Moldavia  and  Wallachia  possessed  few  privileges  beyond 
that  of  having  their  governors  or  Hospodars  elected  by  their 
own  nobility,  till  the  treaties  of  Kutschuk-Kainardji  in  1774 
and  Adrianople  in  1829  made  them  into  Part-Sovereign 
States  under  the  suzerainty  of  the  Porte  and  the  guarantee 
of  Russia.  The  treaty  of  Paris  of  1856  substituted  a Euro- 
pean for  a Russian  guarantee.  In  1861  the  persistence  of 
the  inhabitants  was  successful  in  extorting  from  the  Porte 
the  union  of  the  two  principalities  into  the  one  realm  of 
Roumania ; and  in  1878  the  independence  of  Roumania  was 
recognized  by  the  Great  Powers  and  Turkey.  Its  ruler, 
Prince  Charles  of  Hohenzollern,  took  the  title  of  King  in 
1881.  The  case  of  Roumania  may  be  regarded  as  fairly 
typical.  What  we  have  said  of  it  would  apply  mutatis  mu- 
tandis to  Servia,  and  will  in  all  probability  apply  in  the 
course  of  time  to  the  principality  of  Bulgaria,  which  was 
freed  from  the  Turkish  yoke  with  more  or  less  completeness 
by  the  Treaty  of  Berlin  in  1878.  Montenegro  stood  on  a 
somewhat  different  footing.  Its  Prince  claimed  never  to 
have  lost  his  independence,  while  the  Sultan  asserted  the 
rights  of  a Suzerain  over  the  country.  The  dispute,  after 
being  the  cause  of  countless  wars,  was  ended  by  the  Treaty 
of  Berlin,  wherein  the  independence  of  Montenegro  was 
recognized  by  all  the  signatory  powers  who  had  not  recog- 
nized it  before.  It  will  be  seen,  therefore,  that  Roumania, 
Servia,  and  Montenegro  are  now  completely  Sovereign  States, 
and  accordingly  they  belong  to  the  first  of  the  classes  into 
which  we  have  divided  the  Subjects  of  International  Law. 
Bulgaria,  however,  must  be  regarded  as  a Part-Sovereign 
State  under  the  suzerainty  of  the  Porte.  It  is  governed  as 
an  autonomous  principality  by  a Prince  in  whose  line  the 
dignity  has  been  made  hereditary.  In  1886  the  province  of 
Eastern  Roumelia  was  united  to  it  by  the  force  of  a popular 
movement.  The  Great  Powers  have  made  no  attempt  to 
undo  the  work  of  this  successful  revolution,  though  they 


THE  SUBJECTS  OF  INTERNATIONAL  LAW.  71 

have  not  accorded  a formal  recognition  to  the  union.  They 
have  treated  in  the  same  way  the  election  of  Ferdinand  of 
Coburgh  as  Prince  of  Bulgaria  in  1887,  after  the  forced 
abdication  of  Prince  Alexander.  The  Treaty  of  Berlin  con- 
stituted Bulgaria  “ an  autonomous  and  tributary  Principality 
under  the  suzerainty  of  His  Imperial  Majesty,  the  Sultan.” 
Ottoman  troops  were  to  be  excluded  entirely  from  its  terri- 
tory, which  was  to  be  defended  by  a national  militia.  The 
treaty  was  silent  as  to  the  right  of  negotiating  with  foreign 
powers,  though  it  implied  that  such  a right  existed  by  the 
provision  for  the  conclusion  of  a Railway  Convention  imme- 
diately after  the  termination  of  the  war.  In  1888,  however, 
the  representative  of  the  principality  was  not  allowed  to 
sign  a convention  about  the  navigation  of  the  Danube,  the 
signature  of  the  Porte  being  held  to  suffice.1  But  since 
then  the  rulers  of  Bulgaria  have  shown  great  activity  in  the 
management  of  foreign  as  well  as  domestic  affairs.  They 
have  waged  a successful  war  with  Servia,  and  have  con- 
stantly negotiated  with  foreign  powers  for  the  recognition 
of  the  changes  they  have  effected  in  the  internal  arrange- 
ments of  their  country.  It  is  clear  that  they  already  possess 
a large  share  of  the  external  sovereignty  over  the  princi- 
pality ; and  probably  they  will  before  long  obtain  it  all,  and 
become  absolutely  independent.  But  at  present  we  must 
rank  the  country  among  those  Part-Sovereign  States  which 
are  under  a Suzerain. 

The  position  of  Egypt  is  peculiar  and  anomalous ; but 
there  can  be  no  doubt  that  by  the  letter  of  international 
documents  it  has  been  constituted  a Part-Sovereign  State 
under  the  suzerainty  of  the  Porte.  It  was  for  centuries  a 
province  of  the  Ottoman  Empire ; but  in  1831  its  ruler, 
Mehemet  Ali,  revolted  against  the  Sultan.  After  some  years 
of  successful  warfare  he  was  on  the  point  of  taking  Constan- 

1 For  the  territorial  and  other  arrangements  referred  to  in  the  text,  see 
Holland,  European  Concert  in  the  Eastern  Question , Ch.  VI.,  and  Twiss, 
Law  of  Nations , Chs.  IV.  and  V. 


72 


THE  SUBJECTS  OP  INTERNATIONAL  LAW. 


tinople,  when  the  Great  Powers  interfered  and  compelled  him 
to  restore  the  larger  part  of  his  conquests.  But  by  the 
Quadruple  Treaty  of  1840,  and  the  Sultan’s  Firman  of  June, 
1841,  Egypt  was  erected  into  an  hereditary  Pashalic  under 
the  rule  of  Mehemet  Ali  and  his  descendants ; and  by  these 
and  subsequent  concessions  the  title  of  Khedive  was  conferred 
upon  the  ruler  of  the  country,  and  he  obtained  many  of  the 
rights  of  a sovereign  prince.  He  could  maintain  an  army, 
contract  loans,  and  make  non-political  conventions  with 
foreign  powers;  and  though  by  the  Firman  of  1879  the  num- 
ber of  Egyptian  soldiers  was  limited  to  eighteen  thousand, 
and  a few  other  restrictions  were  imposed  upon  Tewfik 
Pasha,  the  new  Khedive,  he  was  left  in  possession  of  many 
of  the  powers  of  external  sovereignty.  The  position  of  the 
Khedive  is  still  nominally  defined  by  Firman,  but  the  state- 
paper  suzerainty  of  the  Porte  has  been  practically  set  aside, 
owing  to  the  power  exercised  over  Egyptian  affairs,  first  by 
England  and  France  acting  together,  and  then,  after  the 
withdrawal  of  France  from  active  co-operation  in  1882,  by 
England  acting  alone.  Since  Great  Britain  put  down  in  that 
year  the  revolt  of  Arabi  Pasha,  Egypt  has  been  occupied  by 
British  troops,  and  the  country  has  been  governed  under 
British  advice  and  largely  by  British  administrators.1  The 
present  state  of  affairs  cannot  be  prolonged  indefinitely. 
Great  Britain  is  pledged  to  withdraw  her  troops  as  soon  as 
the  task  of  reorganizing  the  finances  of  Egypt  and  building 
up  a solid  and  permanent  native  administration  is  completed. 
Whatever  may  be  the  arrangement  finally  arrived  at,  it  is 
certain  that  the  Great  Powers  of  Europe  will  be  consulted, 
and  that  the  country  will  not  be  allowed  to  glide  back  under 
the  corrupt  despotism  of  the  Ottoman  Porte.2 

Monaco  may  perhaps  be  added  to  Bulgaria  and  Egypt  in 
order  to  complete  the  list  of  Part-Sovereign  States  under  the 

1 Holland,  The  European  Concert  in  the  Eastern  Question,  Ch.  IV. 

2 Debate  in  House  of  Commons,  Aug.  10,  1882,  Hansard , 3d  Series,  Yol. 
CCLXXIII. 


THE  SUBJECTS  OF  INTERNATIONAL  LAW. 


73 


authority  of  a Suzerain  belonging  to  the  European  state- 
system.  The  superior  power  in  this  case  is  Italy,  which  has 
succeeded  to  the  rights  given  to  the  King  of  Sardinia  by  the 
Treaty  of  Turin  of  1817.  The  Prince  of  Monaco,  though 
practically  powerless,  does  appear  to  possess  some  of  the 
rights  of  external  sovereignty  ; for  he  occasionally  negotiates 
a treaty,  consuls  are  accredited  to  him,  and  the  principality 
has  its  own  commercial  flag.  The  Republic  of  Andorra  in 
the  Pyrenees  is  another  “international  atom,”  devoid  of 
power  and  consequence,  but  capable  of  presenting  a curious 
problem  to  the  international  jurist.  It  negotiated  a treaty 
with  Spain  as  late  as  1834,  and  we  must  therefore  hold  that 
it  has  the  power  of  dealing  directly  with  foreign  states.  But 
it  is  obvious  that  a community  of  ten  thousand  souls,  hidden 
away  in  the  valleys  of  the  Pyrenees  and  transacting  its  own 
local  affairs  under  the  joint  protection  of  the  French  Repub- 
lic and  the  Spanish  Bishop  of  Urgel,  will  rarely  be  troubled 
by  foreign  complications.1  It  is  an  antiquarian  curiosity  and 
a jural  puzzle.  If  we  must  classify  it,  we  had  better  place 
it  in  the  first  division  of  Part-Sovereign  States.  Its  name 
concludes  the  list  as  far  as  Europe  and  the  European  state- 
system  are  concerned.  A microscopic  examination  of  the 
other  quarters  of  the  globe  might  perhaps  reveal  some  civil- 
ized communities  which  stand  to  one  another  in  the  relation 
of  Suzerain  and  vassal.  But  they  are  few  and  unimportant, 
and  we  need  not  strive  to  find  them. 

51. 

We  now  come  to  the  second  kind  of  Part-Sovereign  States  ; 
that  is,  those  which  are  members  of  the  looser  form  of  Con- 
federation called  a Staatenbund.  The  pecul- 

• • . . . . . x Members  of  a 

ianty  of  this  sort  of  Union  is  that  the  central  system  of  con- 

. federated  states. 

authority  does  not  transact  the  whole  external 
business  of  the  Confederation,  - but  each  confederated  state 
1 Twiss,  Law  of  Nations,  §§  27  and  35. 


74 


THE  SUBJECTS  OF  INTERNATIONAL  LAW. 


reserves  to  itself  the  right  of  dealing  directly  with  foreign 
powers  in  matters  not  expressly  removed  from  its  cognizance 
hy  the  provisions  of  the  Federal  Pact.  For  instance,  in  the 
German  Confederation  which  lasted  from  1815  to  1866,  each 
member  had  the  right  of  entering  into  relations  with  foreign 
states  provided  that  it  did  nothing  against  the  security  of 
any  other  member  or  of  the  Confederation  itself.  The  cen- 
tral authority  was  vested  in  a Diet  which  sat  at  Frankfort, 
and  was  composed  of  the  ministers  of  the  separate  states. 
It  had  the  power  of  making  treaties,  sending  and  receiving 
ambassadors,  and  declaring  war  against  foreign  powers  in 
case  the  territory  of  the  Confederation  should  be  threatened 
by  them.  But  these  powers  were  sparingly  exercised.  The 
Diet  maintained  no  permanent  legations  at  the  courts  of 
other  states,  and  only  the  five  Great  Powers  accredited 
ambassadors  to  it.  On  the  other  hand,  the  separate  states 
sent  representatives  both  to  one  another  and  to  foreign 
states.1  The  full  powers  of  sovereignty  over  each  of  the 
German  states  were  thus,  according  to  the  letter  of  the 
Federal  Bond,  divided  between  the  Diet  and  the  home  gov- 
ernment of  that  state.  The  central  authority  at  Frankfort, 
therefore,  as  well  as  the  government  of  each  of  the  separate 
states  must  in  strictness  be  accounted  part-sovereign.  A 
difficulty  may  be  felt  with  regard  to  the  application  of  this 
term  to  such  powerful  states  as  Austria  and  Prussia.  But 
nothing  more  is  meant  thereby  than  the  assertion  that  their 
authority  over  their  territory  within  the  limits  of  the  Con- 
federation was  limited,  at  least  on  paper,  by  the  authority  of 
Diet.  With  respect  to  their  non-German  possessions  they 
were,  of  course,  fully  sovereign ; and  for  all  practical  pur- 
poses they  were  sovereign  in  their  German  dominions  also, 
since  they  either  manipulated  the  Diet  at  their  pleasure,  or, 
if  that  was  impossible,  disregarded  its  decisions.  But  by  the 
terms  of  the  Federal  Pact  their  authority  was  as  much  limited 
as  was  that  of  Saxony  or  Baden,  and  it  is  impossible  to  put 
1 Wheaton,  International  Law , §§  47-51. 


THE  SUBJECTS  OF  INTERNATIONAL  LAW.  75 

them  in  a different  category,  considered  as  members  of  the 
Confederation.  Had  the  states  which  composed  it  been 
equal  or  nearly  equal  in  power,  the  conclusion  to  which  we 
have  been  led  by  a consideration  of  its  Constitution  would 
have  been  manifest  upon  the  face  of  its  history.  And  since 
the  German  Confederation  is  regarded  as  the  type  of  a 
Staatenbund,  we  may  give  a general  application  to  the  deduc- 
tions we  have  drawn  from  our  study  of  it,  and  lay  down  with 
confidence  that  in  all  such  unions  both  the  central  authority 
and  the  separate  members  are  to  be  regarded  as  Part-Sover- 
eign States.  The  power  of  each  member  is  limited  by  the 
authority  of  the  central  body,  and  the  power  of  the  central 
body  is  limited  by  the  rights  reserved  to  each  separate  mem- 
ber. Inasmuch  as  both  the  central  authority  and  the  sepa- 
rate states  carry  on  diplomatic  intercourse  with  foreign 
powers,  they  must  each  and  all  be  regarded  as  Subjects  of 
International  Law;  and  inasmuch  as  they  carry  on  such 
intercourse  only  in  a limited  degree,  they  cannot  be  regarded 
as  fully  and  absolutely  sovereign.  But  nevertheless  a clear 
line  of  demarcation  separates  them  from  Part-Sovereign 
States  which  are  under  a Suzerain.  We  cannot  properly 
speak  of  suzerainty  in  connection  with  a Staatenbund.  The 
central  authority,  being  created  by  the  separate  states  and 
dependent  for  its  very  existence  upon  their  will,  can  hardly 
be  considered  as  their  superior,  and  it  would  be  absurd  to 
talk  of  it  as  being  itself  under  the  suzerainty  of  the  members 
of  the  Confederation.  It  is  necessary,  therefore,  to  place 
Part-Sovereign  States  which  are  members  of  a Confedera- 
tion in  a sub-class  by  themselves.  Such  Confederations  are 
from  the  nature  of  the  case  doomed  to  extinction  ; since  they 
exist,  politically  speaking,  in  a condition  of  unstable  equilib- 
rium. Probably  none  of  them  have  survived  to  the  present 
day.  Their  members  either  separate  and  form  fresh  com- 
binations, as  did  those  of  the  German  Bund,  or  they  tighten 
the  Federal  Bond  till  their  union  becomes  a Bundesstaat,  as 
did  those  of  the  Swiss  Confederation. 


76 


THE  SUBJECTS  OF  INTERNATIONAL  LAW. 


§52. 

Part-Sovereign  States  of  the  third  kind  have  usually  been 
looked  upon  as  fully  independent.  Yet  if  the  description  of 
sovereignty  we  have  given  be  correct,  it  is  hard 
{ri™ed  statesneu"  to  see  how  permanently  neutralized  states  can 
be  so  regarded.  Their  integrity  and  indepen- 
dence are  guaranteed  by  agreement  between  the  Great  Powers, 
on  condition  that  they  do  not  go  to  war  except  for  the  de- 
fence of  their  own  territory  when  attacked,  and  do  not  in 
time  of  peace  enter  into  any  engagements  which  might  lead 
them  into  hostilities  for  other  than  purely  defensive  pur- 
poses. Clearly  this  condition,  on  which  alone  they  are 
suffered  to  have  a national  existence,  is  a limitation  of  the 
independence  which  is  guaranteed  to  them.  A fully  sover- 
eign state  can  make  war  for  any  purposes  that  seem  to  it 
sufficient,  and  under  any  circumstances  that  in  the  opinion  of 
its  rulers  call  for  an  appeal  to  force.  To  deprive  it  of  that 
right  is  to  restrict  its  external  sovereignty ; and  when  a 
political  community  is  shorn  of  one  of  the  attributes  of  inde- 
pendence, not  temporarily  and  for  a special  purpose,  but 
permanently  and  as  a condition  of  its  existence,  it  can  hardly 
be  ranked  among  fully  Sovereign  States.  That  it  is  called 
independent  in  the  treaty  of  guarantee  proves  nothing. 
Diplomatists  have  a habit  of  disguising  unpalatable  facts  in 
language  calculated  to  soothe  wounded  susceptibilities.  One 
of  the  first  lessons  to  be  learnt  by  a student  of  statecraft  is 
that  words  are  often  used,  not  because  they  do,  but  because 
they  do  not,  represent  the  things  referred  to.  We  must  deal 
with  realities  if  we  are  to  succeed  in  making  a scientific 
classification  of  the  Subjects  of  International  Law.  It  is  a 
fact  that  the  rulers  of  permanently  neutralized  states  do  not 
exercise  all  the  powers  of  sovereignty.  The  states  in  ques- 
tion are,  therefore,  part-sovereign,  though  the  powers  of 
which  they  are  deprived  are  few  and  unimportant  compared 
with  the  powers  which  they  possess.  They  differ,  however, 


THE  SUBJECTS  OF  INTERNATIONAL  LAW. 


77 


from  other  Part-Sovereign  States  in  that  the  attributes  of 
sovereignty  which  the  domestic  rulers  lack  are  not  vested  in 
the  government  of  any  other  community.  In  Part-Sovereign 
States  of  the  first  kind  the  Suzerain  exercises  the  powers  of 
which  the  local  government  is  deprived.  In  loose  Confedera- 
tions the  central  authority  transacts  with  foreign  powers  the 
business  which  the  rulers  of  the  separate  states  are  not  com- 
petent to  transact  for  themselves.  But  when  a state  is 
permanently  neutralized,  no  external  authority  can  involve  it 
in  offensive  war.  The  powers  which  its  domestic  rulers  can- 
not exercise  are  not  given  to  the  rulers  of  some  other  state : 
they  are  suspended  altogether  by  public  law.  As  long  as  the 
state  remains  neutralized  they  do  not  exist.  No  one,  for 
instance,  can  legally  involve  Belgium,  Switzerland,  or  Luxem- 
burg in  war  for  any  other  purpose  than  the  defence  of  their 
own  frontiers.  Their  territories  are  neutralized  ; and  there- 
fore neither  their  own  governments  nor  any  others  have  by 
International  Law  the  right  to  make  offensive  war  on  their 
behalf.  Their  position  is  in  many  respects  peculiar.  We 
have  defined  it  here  so  far  as  is  necessary  for  our  present 
purpose.  When  we  come  to  deal  with  Neutrality  we  shall 
have  to  refer  to  it  again.1 

§ 53. 

We  have  now  to  consider  the  relation  in  which  Civilized 
Belligerent  Communities  not  being  States  stand  to  International 
Law.  We  have  reckoned  them  among  its  sub- 

. . _ . 0 Civilized  Belliger- 

iects  and  it  remains  for  us  to  iustify  our  classifi-  ent  communities 

J J J not  being  States. 

cation.  These  communities  have  not  received 
recognition  as  Sovereign  States ; but  their  governments 
possess  the  essential  attributes  of  sovereignty,  and  they  desire 
admission  into  the  family  of  nations.  Why  then  are  they 
excluded  ? Because  the  fact  of  their  sovereignty  may  be  a 
temporary  phenomenon.  They  are  endeavoring  by  war  to 
cut  themselves  adrift  from  the  state  of  which  they  form  a 
1 See  §§  245,  246. 


78 


THE  SUBJECTS  OF  INTERNATIONAL  LAW. 


part,  and  set  up  a separate  national  existence  of  their  own ; 
and  while  serious  efforts  are  still  being  made  for  their  sub- 
jection, the  government  they  have  created  may  at  any 
moment  be  overturned,  and  they  may  relapse  into  their 
former  condition  of  component  portions  of  a larger  political 
whole.  Accordingly  they  are  not  recognized  as  independent 
states  while  the  struggle  is  proceeding  with  any  semblance 
of  vigor  on  the  part  of  the  mother  country.  But  meanwhile 
they  are  levying  armies,  equipping  cruisers  if  the  contest  is 
maritime,  and  carrying  on  war  in  a regular  and  civilized 
fashion ; and  those  states  who  are  brought  into  contact  with 
their  operations  must  decide  whether  to  regard  them  as  law- 
ful or  unauthorized.  In  a case  such  as  we  have  supposed 
there  can  be  no  doubt  of  the  decision.  War  exists  as  a fact, 
and  interested  states  must  open  their  eyes  to  it.  This  they 
do  by  according  to  the  incipient  political  community  what  is 
known  as  Recognition  of  Belligerency.  The  effect  of  their 
action  is  to  endow  the  community  with  all  the  rights  and  all 
the  obligations  of  an  independent  state  so  far  as  the  war  is 
concerned,  but  no  further.  Its  armies  are  lawful  belligerents, 
not  banditti ; its  ships  of  war  are  lawful  cruisers,  not  pirates; 
the  supplies  it  takes  from  invaded  territory  are  requisitions, 
not  robbery ; and  at  sea  its  captures  made  in  accordance  with 
maritime  law  are  good  prize,  and  its  blockades  must  be 
respected  by  neutrals.  But  on  the  other  hand,  its  government 
cannot  negotiate  treaties,  nor  may  it  accredit  diplomatic 
ministers.  The  intercourse  it  carries  on  with  other  powers 
must  be  informal  and  unofficial.  It  has  no  rights,  no  im- 
munities, no  claims,  beyond  those  immediately  connected  with 
its  war.  It  is  thus  a Subject  of  International  Law  only  in  a 
limited  and  imperfect  manner.  The  subjection  is  very  real 
as  far  as  it  goes,  but  it  covers  but  one  portion  of  the  activity 
of  a state  and  does  not  extend  in  any  way  to  the  normal 
relations  of  peaceful  intercourse.  Should  the  belligerent 
community  succeed  in  defeating  all  the  attempts  of  the 
mother  country  to  subdue  it,  sooner  or  later  existing  states 


THE  SUBJECTS  OF  INTERNATIONAL  LAW. 


79 


will  accord  to  it  Recognition  of  Independence,  and  it  will 
then  stand  on  the  same  footing  as  they  do  and  become  a 
Subject  of  International  Law  in  all  things.  We  shall  see 
later  on  in  this  chapter  what  are  the  conditions  of  Recogni- 
tion of  Independence,  and  when  we  come  to  deal  with  the 
subject  of  War  we  shall  discuss  under  what  conditions  Recog- 
nition of  Belligerency  may  be  given  without  affording  to  the 
parent  state  just  ground  of  offence.1 

§ 54. 

Corporations  come  fourth  in  our  list  of  the  Subjects  of 
International  Law ; and  if  we  had  none  but  ordinary  cor- 
porations to  deal  with,  a very  few  words  would  corporations  both 
suffice  to  indicate  the  nature  of  their  connec-  °erged.ary  and  pmi 
tion  with  it.  As  owners  of  property  they  may  under  certain 
circumstances  come  under  its  rules,  especially  in  matters 
connected  with  belligerent  capture.  If  a state  in  time  of 
war  makes  a lawful  seizure  of  enemy  property  on  land  or 
at  sea,  it  matters  not  whether  the  private  owner  be  an  in- 
dividual, or  a group  of  individuals  associated  together  in  a 
company  for  trading  or  other  purposes.  In  either  case  the 
property  will  be  confiscated,  and  all  right  in  it  will  be  lost 
to  the  original  possessors.  The  Prize  Courts  which  administer 
the  law  of  maritime  capture  frequently  decide  upon  questions 
involving  corporate  ownership,  and  the  rights  of  corporations 
may  come  before  international  tribunals  or  be  the  subject 
of  diplomatic  correspondence.  Thus  far  the  matter  is  simple ; 
but  we  enter  upon  a sphere  of  great  complexity  when  we 
endeavor  to  describe  the  international  position  of  those  great 
chartered  companies  which  have  been  called  into  existence 
within  the  last  few  years  by  some  of  the  colonizing  powers, 
especially  Great  Britain  and  Germany,  to  open  up  enormous 
territories  recently  brought  within  the  sphere  of  their  in- 
fluence. We  refer  to  such  privileged  corporations  as  the 

i See  §§  162-163. 


80 


THE  SUBJECTS  OF  INTERNATIONAL  LAW. 


German  East  Africa  Company,  the  British  East  Africa 
Company,  the  Royal  Borneo  Company,  the  Royal  Niger 
Company,  and  the  British  South  Africa  Company.  The  last 
is  probably  the  strongest  and  most  important  of  them  all. 
It  may  be  considered  typical  of  its  class  ; and  an  examination 
of  the  powers  conferred  upon  it  will  enable  us  to  fix  the 
position  of  the  great  chartered  companies  in  International 
Law. 

By  Order  in  Council  dated  January  18,  1889,  Queen 
Victoria  granted  to  a group  of  noblemen  and  gentlemen  a 
royal  charter  of  incorporation  as  a British  company  formed 
for  the  purpose  of  carrying  into  effect  concessions  made  by 
the  chiefs  and  tribes  of  a region  which  stretches,  as  extended 
by  further  grant  from  Her  Majesty  in  1891,  from  the  Trans- 
vaal Republic  and  the  22d  parallel  of  south  latitude  to  the 
southern  limits  of  the  Congo  Free  State  and  German  East 
Africa,  and  is  bounded  on  the  east  and  west  by  Portuguese 
and  German  spheres  of  influence  and  the  Nyassaland  Pro- 
tectorate of  Great  Britain.  Within  this  enormous  territory 
the  company  possesses  by  royal  grant  the  liberty  to  acquire 
by  concession  from  the  natives  “ any  rights,  interests,  au- 
thorities, jurisdictions,  and  powers  of  any  kind  or  nature 
whatever,  including  powers  necessary  for  the  purposes  of 
government.”  This  right  is  to  be  exercised  subject  to  the 
approval  of  the  Secretary  of  State  for  the  Colonies,  whose 
consent  has  to  be  gained  to  the  legislative  ordinances  the 
company  may  promulgate,  and  whose  arbitration  may  be 
offered,  and  must  be  accepted  if  offered,  in  case  any  differ- 
ences arise  with  any  native  chief  or  tribe  within  the  territory. 
The  company  may  establish  a police  force  and  use  a distinc- 
tive flag  indicating  its  British  character.  It  is  bound  not 
to  set  up  any  monopoly  of  trade,  nor  to  allow  the  sale  of 
intoxicants  to  the  natives,  nor  to  interfere  with  their  religious 
rites  except  for  purposes  of  humanity.  It  must  establish 
courts  for  the  administration  of  justice  and  pay  due  regard 
therein  to  native  laws  and  tribal  customs.  The  discourage- 


THE  SUBJECTS  OF  INTERNATIONAL  LAW. 


81 


ment  and  gradual  abolition  of  the  slave-trade  and  domestic 
servitude  are  made  obligatory  upon  it.  The  suggestions  of 
the  Colonial  Secretary  are  to  be  adopted  if  he  dissents  from 
“ any  of  the  dealings  of  the  company  with  any  foreign 
power,”  and  proper  attention  is  to  be  paid  to  the  require- 
ments and  requests  of  the  British  High  Commissioner  in 
South  Africa  and  other  officers  of  the  Queen  who  may  be 
stationed  in  its  territories.  Further,  it  is  bound  to  perform, 
under  the  direction  of  the  Colonial  Secretary,  all  obligations 
contracted  by  the  Imperial  Government  with  foreign  powers 
in  so  far  as  they  relate  to  its  territory  and  its  activities.  And 
lastly,  the  Crown  reserves  a right  to  revoke  its  charter  at 
any  time,  if  it  exercises  its  powers  improperly,  and  to  alter 
or  put  an  end  to  so  much  of  the  charter  as  relates  to  adminis- 
trative and  public  matters  after  twenty-five  years  from  the 
first  grant,  and  at  the  end  of  every  succeeding  period  of  ten 
years.1 

It  is  easy  to  see  how  the  natives  must  regard  a body  of  men 
armed  with  such  authority  as  that  granted  to  the  British 
South  Africa  Company,  and  possessed  of  skill,  energy,  scien- 
tific machinery,  and  weapons  of  precision.  To  them  the  com- 
pany must  be  all-powerful.  They  know  little  or  nothing  of 
the  Imperial  Government,  and  indeed  the  control  exercised 
by  the  Colonial  Secretary,  though  it  looks  imposing  on  paper, 
must  from  the  nature  of  the  case  be  merely  nominal  except 
in  very  great  emergencies.  He  is  thousands  of  miles  from 
the  scene  of  action  : his  information  is  what  the  company 
gives  him,  and  he  is  busied  with  a multiplicity  of  other  and 
more  pressing  matters.  Practically  the  company  rules  its 
territories  in  so  far  as  they  are  ruled  at  all.  It  legislates,  it 
administers,  it  punishes,  it  negotiates,  it  makes  Avar,  and  it 
concludes  peace.  As  regards  the  native  tribes,  it  exercises  all 
the  powers  of  sovereignty.  And  ivhat  is  true  in  fact  is  true 
in  theory  also.  Powers  of  internal  government  are  expressly 

1 London  Gazette , Dec.  20,  1889;  Statesman's  Year  Book  for  1894,  pp. 
193-195. 

G 


82 


THE  SUBJECTS  OF  INTERNATIONAL  LAW. 


given  by  the  charter,  and  some  kind  of  authority  to  settle 
external  affairs  is  implied  in  the  provision  that  the  Colonial 
Secretary  may  dissent  from  the  dealings  of  the  company 
with  foreign  powers.  Yet  all  this  vast  fabric  of  supremacy 
rests  upon  the  foundation  of  a royal  grant  which  is  subject 
to  be  revoked  at  any  time  if  the  advisers  of  the  British  Crown 
are  dissatisfied  with  the  conduct  of  the  company,  and  is 
exercised  from  day  to  day  at  the  discretion  of  a royal  officer 
who  has  power  to  disallow  the  company’s  acts  and  insist 
upon  obedience  to  his  requirements.  And  behind  all  stands 
the  reserved  supremacy  of  the  Imperial  Parliament,  which 
could  b}r  legislation  make  any  alteration  it  pleased  in  the 
constitution  and  position  of  the  company,  or  even  abolish  it 
altogether.  Clearly  then  it  is  no  independent  authority  in 
the  eye  of  British  law,  but  a subordinate  body  controlled  by 
the  appropriate  departments  of  the  supreme  government. 
Like  Janus  of  old,  it  has  two  faces.  On  that  which  looks 
towards  the  native  tribes  all  the  lineaments  and  attributes  of 
sovereignty  are  majestically  outlined.  On  that  which  is 
turned  towards  the  United  Kingdom  is  written  subordination 
and  submission.  We  may  extend  the  simile  and  make  it 
apply  to  all  the  other  chartered  companies  of  which  we  spoke. 
They  are  sovereign  in  relation  to  the  barbarous  or  semi-bar- 
barous inhabitants  of  the  districts  in  which  they  bear  sway. 
They  are  subject  as  regards  the  governments  of  their  own 
states.  History  comes  on  this  point  to  the  aid  of  abstract 
reasoning,  and  by  showing  how  England’s  great  East  India 
Company  ruled  a mighty  empire,  and  yet  was  subject  from 
time  to  time  to  British  legislation  and  was  at  last  swept 
away  altogether  by  the  action  of  Queen  and  Parliament,  com 
firms  in  a striking  manner  the  view  we  have  ventured  to  take 
of  the  position  in  International  Law  of  its  imitators  and  suc- 
cessors. They  are  altogether  abnormal ; and  in  all  probability 
many  complications  are  destined  in  future  to  arise  from  the 
peculiar  conditions  of  their  existence. 1 

1 See  § 104. 


83 


THE  SU  CTS  OF  INTERNATIONAL  LAW. 

A. 


\ 


( U 


§ 55. 


We  have  now  reached  the  fifth  and  last  class  of  subjects 
of  International  Law.  Individuals  may  come  under  its 


rules  as  owners  of  property  or  because  of  acts 


Individuals. 


done  by  them  in  time  of  war  as  private  persons 
and  not  as  agents  of  the  state,  or  on  account  of  circumstances 
in  their  lives  which  bring  them  into  direct  relations  with 
some  authority  whose  force  is  derived  from  the  law  of  nations 
and  not  from  Municipal  Law.  We  exclude  from  our  classi- 
fication the  authorized  agents  of  the  belligerents.  Their  acts 
are  state  acts,  for  which  their  country  is  responsible  ; and  any 
controversies  that  may  arise  about  them  are  controversies 
between  two  nations.  But  the  rules  of  belligerent  capture 
are  applied  to  private  individuals,  and  Prize  Courts  discuss 
and  settle  the  changes  in  proprietary  right  made  in  conse- 
quence of  hostile  seizure  at  sea.  Private  persons  may,  while 
war  is  going  on,  perform  on  their  own  responsibility  acts  which 
will  bring  them  into  direct  contact  with  rules  of  International 
Lav/.  They  may,  for  instance,  attempt  to  run  a blockade, 
and  suffer  forfeiture  of  ship  and  cargo  ; or  they  may  fire  upon 
the  enemy  from  the  windows  of  their  houses,  and  be  executed 
as  unauthorized  combatants.  Again,  in  time  of  peace  a man 
may  become  a pirate,  and  thus  render  himself  liable  to  be 
hanged  after  trial  and  condemnation  by  a duly  constituted 
court  of  any  country  whose  cruisers  can  seize  him.  It  acts 
because  International  Law  gives  to  every  state  the  right  to 
capture  pirates,  even  though  they  are  not  its  own  subjects. 
These  cases  are  exceptional.  As  a rule,  the  law  of  nations 
takes  no  cognizance  of  individuals  as  such.  States,  being 
but  aggregations  of  human  beings,  must  carry  on  their  mu 
tual  intercourse  by  human  agency : but  it  is  the  state,  and 
not  its  agents,  that  comes  under  the  law.  Sometimes,  how- 
ever, one  state  is  empowered  to  deal  directly  with  citizens 
of  another  in  their  individual  capacity ; and  when  this 
occurs  they  are,  for  the  time  and  as  far  as  the  question 
extends,  subjects  of  International  Law. 


84 


THE  SUBJECTS  OF  INTERNATIONAL  LAW. 


§56. 

A large  number  of  the  states  which  belong  to  what  is 
aptly  called  the  family  of  nations,  and  acknowledge  certain 
rules  as  binding  in  their  mutual  intercourse, 

Admission  of  new  ° 

subjects  of  inter-  have  been  in  this  position  from  time  imme- 

national  Law.  _ x 

morial.  Modern  International  Law  grew  up 
among  them.  There  never  was  a time  when  they  were  out- 
side its  pale.  Their  influence  helped  to  mould  it.  Many 
of  them  existed  before  the  great  majority  of  its  rules  came 
into  being.  There  was  no  need  for  them  to  be  formally 
received  among  its  subjects.  Anything  like  a ceremony  of 
initiation  would  have  been  wholly  inapplicable  to  their  case. 
The  older  states  of  Europe  are  in  this  condition.  They  form 
as  it  were  the  nucleus  of  international  scciety.  But  with  re- 
gard to  other  states  there  was  a necessity  for  formal  admission 
into  it,  either  because  a new  body  politic  was  formed  where 
no  separate  international  entity  existed  before,  or  because  a 
political  society  already  in  existence  so  altered  its  character 
as  to  be  capable  of  abiding  by  rules  which  had  previously  been 
inapplicable  to  it. 

§ 57. 

We  shall  find  on  examination  that  the  admission  of  new 
subjects  within  the  pale  of  International  Law  takes  place 
under  three  different  sets  of  circumstances, 
accounted  barbar-  The  first  occurs  when  a state  hitherto  accounted 
barbarous  is  received  into  the  family  of  nations, 
as  was  Turkey  by  the  Treaty  of  Paris  of  1856,  the  seventh 
article  of  which  declared  “ the  Sublime  Porte  admitted  to 
participate  in  the  advantages  of  the  public  law  and  system 
of  Europe.”1  With  more  or  less  of  formality,  Persia, 
China,  and  Japan  have  been  accorded  a similar  recognition. 
As  we  have  already  seen,  the  possession  of  a fixed  territory 
and  a certain  size  and  importance  are  essential  to  member- 
1 Holland,  European  Concert  in  the  Eastern  Question,  p.  245. 


THE  SUBJECTS  OF  INTERNATIONAL  LAW. 


85 


ship  in  the  family  of  nations.  A further  requisite  is  that 
the  state  to  be  admitted  shall  be  to  some  extent  civilized 
after  the  European  model ; but  the  exact  amount  of  civiliza- 
tion required  cannot  be  defined  beforehand.  Each  case  must 
be  judged  on  its  own  merits  by  the  powers  who  deal  with 
it ; and  it  is  clear  that  they  would  not  admit  a state  into 
their  society  if  they  did  not  deem  it  sufficiently  like  to  them- 
selves in  organization  and  ideas  to  be  able  to  observe  the 
rules  they  have  laid  down  for  their  mutual  intercourse. 

§ 58. 

Another  case  of  admission  is  exemplified  when  a new  body 
politic  formed  by  civilized  men  in  districts  hitherto  left  to 
nature  or  to  savage  tribes  is  recognized  as  an  states  formed  by 
independent  state.  The  Transvaal,  or  South  hilhefto  unchii- 
African  Republic,  affords  an  excellent  example.  126,1  C0UDtne3- 
In  1835  a number  of  Dutch  farmers  left  Cape  Colony  and 
went  out  into  the  wilds  of  South  Africa.  They  settled  first 
in  the  district  now  known  as  the  Colony  of  Natal,  where 
they  set  up  a rudimentary  form  of  civilized  government. 
On  the  annexation  of  this  territory  to  the  British  Empire 
they  again  migrated,  and,  having  crossed  the  river  Yaal, 
established  themselves  in  the  country  beyond  it  with  the 
town  of  Pretoria  as  their  capital.  In  1852  they  were  recog- 
nized by  Great  Britain  as  an  independent  state,  and  other 
powers  followed  her  example.  Subsequent  events  have  de- 
prived the  republic  of  some  portion  of  its  external  sover- 
eignty ; but  it  is  still  a separate  political  entity,  and  plays 
an  important  part  in  that  rapid  development  of  South  Africa 
which  is  going  on  before  our  eyes.  Another  example  of  the 
class  of  cases  under  consideration  is  to  be  found  in  the  crea- 
tion and  recognition  of  the  Congo  Free  State,  which  was 
founded  by  the  International  Association  of  the  Congo,  a 
philanthropic  society  under  the  direction  of  the  King  of  the 
Belgians,  who  for  some  years  provided  from  his  private  re- 


86 


THE  SUBJECTS  OF  INTERNATIONAL  LAW. 


sources  the  funds  necessary  to  carry  on  its  operations.  These 
were  directed  towards  the  formation  of  civilized  settlements 
in  the  vast  area  of  the  Congo  basin,  for  the  purpose  of  com- 
bating the  slave-trade  and  opening  up  the  country  to  legiti- 
mate and  peaceful  commerce.  Treaties  were  made  between 
the  Association  and  numerous  native  tribes,  whereby  it  ac- 
quired an  enormous  territory,  estimated  to  consist  of  900,000 
square  miles  with  a population  of  17,000,000  souls.  Its 
boundaries  received  clear  definition  in  a series  of  conven- 
tions and  declarations  negotiated  in  1884  and  1885  between 
the  Association  and  the  various  states  represented  at  the 
West  African  Conference  of  Berlin.  They  recognized  it  as 
an  independent  state  and  acknowledged  its  flag  as  that  of 
a friendly  power.  By  the  Final  Act  of  the  Conference  its 
territory  was  included  in  the  zone  within  which  all  nations 
were  to  enjoy  complete  freedom  of  trade,  and  the  signatory 
powers  bound  themselves  to  respect  its  neutrality  in  the 
event  of  a war  as  long  as  it  fulfils  the  duties  which  neu- 
trality requires.  The  new  state  thus  created  possessed  few 
sources  of  revenue ; and  had  it  not  been  for  the  large  sums 
expended  by  the  King  of  the  Belgians,  its  sovereign,  upon 
the  work  of  its  development,  it  would  not  have  been  able 
to  maintain  its  stations  and  go  forward  with  its  task  of  open- 
ing up  the  country.  The  burden  was  partially  lifted  from 
his  shoulders  in  1890,  when  the  parties  to  the  Final  Act  of 
the  West  African  Conference  empowered  the  Congo  Free 
State  to  levy  certain  moderate  duties  on  imports  for  revenue 
purposes.  Belgium  also  gave  it  financial  assistance,  receiv- 
ing in  return  a right  of  annexation  after  a period  of  ten 
years.  The  King  had  previously  bequeathed  by  will  to  the 
Belgian  state  his  rights  as  sovereign  of  the  Congo  Free 
State,  and  though  its  future  is  doubtful,  within  a few  years 
it  may  become,  subject  to  its  existing  international  obliga- 
tions, a dependency  of  Belgium.1  A third  instance  of  the 

1 British  State  Papers,  Africa , No.  4 (1885);  Statesman's  Tear  Book 
for  1894,  pp.  439-440. 


THE  SUBJECTS  OF  INTERNATIONAL  LAW. 


87 


grant  of  recognition  to  communities  of  men  who  established 
civilized  rule  in  uncivilized  districts  is  to  be  found  in  the 
history  of  the  Republic  of  Liberia,  originally  founded,  like 
the  Congo  Free  State,  by  a voluntary  association  of  indi- 
viduals leagued  together  for  philanthropic  purposes.  In  this 
case  the  association  was  The  American  Colonization  Society 
for  the  Establishment  of  free  men  of  color  of  the  United 
States.  In  1821  it  obtained  from  the  native  chiefs  the 
cession  of  a tract  of  territory  on  the  coast  of  Upper  Guinea, 
and  sent  thither  a number  of  emancipated  negroes.  Liber- 
ally assisted  with  funds  by  the  American  Association,  this 
community  grew  into  an  organized  state  which  in  a few 
years  declared  itself  independent,  and  in  1847  assumed  the 
title  of  the  Republic  of  Liberia.  Great  Britain  was  the  first 
power  to  recognize  the  new  state,  which  she  did  by  negoti- 
ating a formal  treaty  with  it  in  1848.  Since  that  time  other 
countries  have  followed  her  example,  and  the  negro  Republic 
is  an  undoubted  member  of  the  family  of  nations.1 

§ 59. 

The  last  and  most  frequent  case  of  admission  into  the 
society  formed  by  civilized  states  occurs  when  a political 
community  which  has  cut  itself  adrift  from  the  States  whose  In- 
body  politic  to  which  it  formerly  belonged  and  recognized  in 

. 1 J ° consequence  of  a 

started  a separate  national  existence  of  its  own  successful  revolt, 
receives  Recognition  of  Independence  from  other  states.  The 
community  thus  recognized  must,  of  course,  possess  a fixed 
territory,  within  which  an  organized  government  rules  in 
civilized  fashion,  commanding  the  obedience  of  its  citizens 
and  speaking  with  authority  on  their  behalf  in  its  dealings 
with  other  states.  The  act  of  Recognition  is  a normal  act, 
quite  compatible  with  the  maintenance  of  peaceful  inter- 
course with  the  mother  country,  if  it  is  not  performed  till 
the  contest  is  either  actually  or  virtually  over  in  favor  of 
1 Twiss,  Law  of  Nations,  Preface  to  2d  ed. 


88 


THE  SUBJECTS  OF  INTERNATIONAL  LAW. 


the  new  community.  Thus  the  Recognition  of  the  Inde- 
pendence of  the  United  States  by  those  powers  who  accorded 
it  after  Great  Britain  had  herself  recognized  them  as  inde- 
pendent by  the  Preliminaries  of  1782  was  no  unfriendly  act 
towards  her;  but  their  Recognition  by  France  in  1778,  when 
the  contest  was  at  its  height  and  the  event  exceedingly 
doubtful,  was  an  act  of  intervention  which  the  parent  state 
had  a right  to  resent,  as  she  did,  by  war.  Again,  when  the 
Independence  of  the  revolted  Spanish-American  colonies  was 
recognized  by  Great  Britain,  Spain  had  no  cause  to  complain 
of  any  breach  of  international  right,  because  no  Recognition 
was  accorded  in  any  case  till  she  had  ceased  from  serious 
efforts  to  restore  her  supremacy,  though  on  paper  she  still 
asserted  her  claims.  Recognition  was  given  first  to  Buenos 
Ayres  in  1824,  and  at  that  time  the  contest  had  lasted  for 
twenty  years  and  the  colony  had  been  free  from  Spanish 
rule  for  fourteen  years.  The  case  of  Texas  and  its  Recogni- 
tion by  the  United  States  is  somewhat  similar.  In  1836  the 
revolted  Texans  not  only  defeated  the  Mexican  army  at  San 
Jacinto,  but  took  the  Mexican  President  prisoner.  The 
further  attempts  of  Mexico  to  regain  her  authority  were 
absolutely  impotent,  and  the  contest  was  over  when  the 
United  States  recognized  the  Texan  Republic  in  1837.1 

§ 60. 

Recognition  may  take  place  in  various  ways.  Sometimes 
a formal  declaration  of  Recognition  is  made  in  a separate 
The  various  and  independent  document,  and  it  was  in  this 
n'itio'n^of°indepen-  way  that  the  United  States  recognized  the  Congo 
dence'  Free  State  in  1884.2  Sometimes  such  a declara- 

tion is  embodied  in  a treaty  which  deals  with  other  matters 
also,  as  was  done  when  Germany  recognized  the  same  state 

1 Historicus,  Three.  Letters  on  Recognition ; Wharton,  International  Law 
of  the  United  States,  § 70. 

2 British  State  Papers,  Africa , No.  4 {1885),  pp.  262-203. 


THE  SUBJECTS  OF  INTERNATIONAL  LAW.  89 

in  the  same  year.1  Occasionally  the  Recognition  is  made 
conditional,  as  when  the  Independence  of  Roumania,  Servia, 
and  Montenegro  was  recognized  in  the  Treaty  of  Berlin  of 
1878,  on  the  condition  that  they  imposed  no  religious  disabili- 
ties on  any  of  their  subjects.2  Recognition  may  be  effected, 
without  the  use  of  words  directly  according  it,  by  entering 
into  such  relations  with  the  recognized  community  as  are 
held  to  subsist  between  independent  states  alone.  Thus 
there  is  no  formal  statement  of  Recognition  in  the  Treaty 
of  Amity  and  Commerce  between  France  and  the  United 
States  in  1778;  but  the  independence  of  the  revolted  colonies 
is  taken  for  granted  in  every  article,  and  they  covenant 
again  and  again  to  do  what  can  only  be  done  by  Sovereign 
States.3  The  sending  of  a duly  accredited  diplomatic  rep- 
resentative, as  was  done  by  the  United  States  in  the  case 
of  Texas,  has  the  same  effect  as  the  negotiation  of  a treaty. 
Both  are  acts  of  sovereignty,  and  to  perform  them  towards 
an  aspirant  for  admission  into  the  family  of  nations  implies 
that,  as  far  as  the  state  which  does  them  is  concerned,  its 
desire  is  granted.  Recognition  by  one  state  in  no  way  binds 
others.  But  the  example,  once  set,  must  soon  be  followed, 
unless  the  newly  recognized  community  loses  almost  immedi- 
ately its  de facto  independence,  or  is  so  small  and  unimportant 
as  to  be  neglected  with  impunity.  The  quickness  or  slowness 
of  Recognition  is  often  determined  by  political  sympathies ; 
but  no  power  can  continue  for  an  indefinite  time  to  shut 
its  eyes  to  accomplished  facts.  When  a province  or  colony 
has  won  a real  Independence,  recognition  of  it  must  come 
sooner  or  later,  even  from  the  parent  state.  The  lead  in 
these  matters  is  usualty  taken  by  the  government  of  some 
influential  country.  Sometimes  the  Great  Powers  of  Europe 
acting  together  in  concert  agree  upon  a Recognition,  as  when 
they  admitted  Turkey  to  participate  in  the  advantages  of 


1 British  State  Papers,  Africa,  No.  4 (1885),  pp.  263-264. 

2 Holland,  European  Concert  in  the  Eastern  Question,  pp.  293-303. 

3 Treaties  of  the  United  States,  pp.  296-305. 


90 


THE  SUBJECTS  OF  INTERNATIONAL  LAW. 


public  law,  or  gratified  the  national  aspirations  of  the  Balkan 
States  on  condition  of  abstinence  from  anything  that 
savored  of  religious  persecution.  In  cases  such  as  these 
the  smaller  states  almost  invariably  follow  the  example  of 
their  more  powerful  neighbors.  Indeed,  the  Concert  of 
Europe,  which  means  the  agreement  of  the  six  Great  Powers, 
may  be  said  to  represent  the  whole  of  Europe  and  speak  on 
its  behalf. 


CHAPTER  V. 


THE  SOURCES  AND  DIVISIONS  OF  INTERNATIONAL  LAW. 

§ 61. 

By  the  sources  of  International  Law  we  mean  the  places 
where  its  rules  are  first  found.1  An  inquiry  into  them  is 
therefore  historical  in  its  nature.  It  has  noth-  Meaning.  of  the 
ing  to  do  with  the  reason  why  the  rules  were  of  inter- 

originally  invented  or  accepted.  Whether  those  natlonal  Law- 
who  first  set  them  forth  or  obeyed  them  did  so  because  of 
their  conformity  with  a supposed  Law  of  Nature  or  because 
of  their  obvious  utility,  whether  they  were  actuated  by 
motives  of  benevolence  or  by  motives  of  self-interest,  are 
questions  foreign  to  the  present  inquiry.  Doubtless  considera- 
tions of  very  various  degrees  of  respectability  have  presided 
over  the  making  of  the  complex  mass  of  rules  we  call  Inter- 
national Law.  But  our  object  here  is  to  trace  the  process  of 
formation,  not  to  enter  into  the  mental  and  moral  predilections 
of  those  who  took  part  in  it.  We  must  also  remember  that  no 
rule  can  have  authority  as  law  unless  it  has  been  generally  ac- 
cepted by  civilized  states.  Its  source  does  not  give  it  validity. 
Custom  is,  as  it  were,  the  filter-bed  through  which  all  that 
comes  from  the  fountains  must  pass  before  it  reaches  the  main 
stream.  We  have  to  take  the  rules  we  find  in  operation  to-day 
and  trace  them  back  to  the  places  where  they  have  their  origin. 
In  doing  so  we  shall  find  that  the  sources  of  International  Law 
may  be  resolved  into  five,  which  we  will  proceed  to  describe 
in  the  order  of  their  importance. 

1 Austin,  Jurisprudence,  II.,  526-528. 

91 


92  SOURCES  AND  DIVISIONS  OP  INTERNATIONAL  LAW. 


§ 62. 

First  in  influence  and  authority  among  the  sources  of  our 
Science  must  be  reckoned 


Works  of  great 
publicists. 


The  works  of  great  publicists. 

From  the  time  of  Gentilis  and  Grotius  down  to  the  present 
day  there  has  been  a long  series  of  able  writers,  whose  works 
have  influenced  the  practice  of  states  and  whose 
published  opinions  are  appealed  to  in  interna- 
tional controversies.  They  occupy  a position  analogous  to 
that  of  the  great  institutional  writers  on  Common  Law.  That 
is  to  say,  their  views  are  quoted  and  treated  with  respect  in 
disputed  cases,  but  are  not  necessarily  decisive.  In  interna- 
tional controversies  the  longer  the  chain  of  authorities  in  sup- 
port of  any  particular  contention,  the  nearer  the  approach  to 
unanimity  in  the  opinions  of  jurists  of  recognized  position,  the 
more  likely  it  is  that  their  judgment  will  prevail.  Where 
there  are  two  opposing  schools  of  thought,  a quotation  from 
one  author  of  repute  can  always  be  capped  by  another 
expressed  in  a contrary  sense.  But  a nation  which  should  dis- 
regard a general  consensus  of  opinion,  in  which  its  own  pub- 
licists joined,  would  be  held  to  be  acting  in  a high-handed  and 
aggressive  manner.  The  value  of  the  works  of  the  great 
international  jurists  is  by  no  means  confined  to  the  settlement 
of  points  that  are  so  far  doubtful  as  to  afford  matter  for  con- 
troversy. Many  rules  of  undoubted  validity  were  first  intro- 
duced into  the  law  of  nations  by  them.  We  have  but  to  take 
up  one  of  the  chapters  in  which  Grotius  pleads  on  behalf  of 
his  temperamenta  belli  in  order  to  find  stated  there,  for  the 
first  time  as  regards  their  international  application,  a number 
of  humane  precepts  which  have  since  become  the  common- 
places of  belligerent  theory  and  practice.1  It  is  almost 
impossible  to  estimate  how  much  of  the  present  law  of  Occu- 


1 De  Jure  Belli  ac  Pads,  III.,  XI.  -XVI. 


SOURCES  AND  DIVISIONS  OF  INTERNATIONAL  LAW.  93 


pation  and  Jurisdiction  is  derived  from  principles  introduced 
into  our  science  by  the  Spanish  casuists  and  Protestant 
civilians  who  first  applied  the  rules  of  Roman  Law  to  the 
international  problems  raised  by  the  discovery  of  the  New 
World.  The  extent  of  a state’s  territorial  waters  to-day  is 
largely  decided  by  views  to  which  Bynkershoek  gave  currency 
early  in  the  eighteenth  century  ; 1 and  the  work  of  Vattel  two 
generations  later  supplied  rule  after  rule  for  the  rapidly  grow- 
ing law  of  neutrality.2  With  him  the  great  formative  influ- 
ence of  the  publicists  ceased.  International  Law  had  by  no 
means  taken  its  final  shape.  Indeed,  there  can  be  no  finality 
about  it  while  the  complex  society  of  nations  is  a living  and 
growing  reality.  But  the  moulding  influences  passed  into 
other  hands.  For  two  centuries  the  development  of  the  law 
of  nations  had  been  the  work  of  great  thinkers  and  writers. 
It  now  became  the  task  of  statesmen  and  jurists.  It  was  not 
that  the  publicist  had  ceased  to  be  useful.  On  the  contrary, 
the  need  for  him  was  at  least  as  great  as  ever.  But  whereas 
his  function  had  been  formative  in  the  past,  he  was  for  the 
future  to  systematize  and  arrange,  to  reduce  to  principle  and 
render  consistent  with  themselves  the  rules  evolved  from  con- 
troversies between  states  or  laid  down  in  the  practice  of  law 
courts.  And  general  consent  testifies  that  the  work  has  been 
well  done.  A long  array  of  great  names  adorns  the  annals 
of  international  jurisprudence,  and  among  them  the  publicists 
of  Great  Britain  and  the  United  States  find  an  honored  place. 
A race  which  has  produced  Kent  and  Wheaton  and  Manning 
and  Phillimore,  not  to  mention  a host  of  others  many  of 
whom  are  still  alive,  has  done  no  ignoble  service  in  the  cause 
of  peace  and  justice.  Since  the  middle  of  the  eighteenth 
century  great  additions  have  been  made  to  the  rules  which 
govern  the  intercourse  of  states ; and  though  a very  small 
portion  of  them  have  come  from  the  writings  of  jurists,  their 
services  in  sifting  and  arranging  the  new  matter  have  been 
invaluable.  They  have  produced  order  from  chaos,  and  made 
1 De  Dominio  Maris  (1702).  2 Droit  des  Gens,  Bk.  III.,  §§  103-135. 


94  SOURCES  AND  DIVISIONS  OE  INTERNATIONAL  LAW. 

International  Law  into  a science,  instead  of  a shapeless  mass 
of  undigested  and  sometimes  inconsistent  rules.  And  in  most 
cases  their  impartiality  has  been  as  remarkable  as  their 
industry  in  collecting  facts  and  their  power  of  classification 
in  co-ordinating  them.  National  bias  has  not  been  altogether 
absent ; but  it  has  been  kept  under  severe  control,  and  the 
organization  of  the  Institut  de  Droit  International,  with  its 
frequent  publications  and  annual  meetings  of  the  leading 
publicists  of  all  civilized  countries,  has  helped  enormously  to 
eliminate  passion  and  prejudice  from  the  discussion  of  the 
problems  of  state  intercourse.  There  should  be  something 
of  the  judge  and  something  of  the  philosopher  in  every  writer 
on  International  Law.  In  many  the  qualities  of  both  are 
happily  combined,  and  there  are  very  few  who  degrade  them- 
selves to  the  level  of  the  heated  partisan.  Doubtful  and 
difficult  points  are  discussed  in  a scientific  spirit  as  jural  prob- 
lems, and  without  any  reference  to  their  bearing  on  the  inter- 
ests of  particular  states.  Indeed,  it  often  happens  that 
publicists  consider  questions  as  to  which  no  international 
controversy  has  arisen.  The  opinions  expressed  are  then  of 
necessity  unwarped  by  national  pride  or  patriotic  sentiment ; 
and  if  states  should  hereafter  differ  with  regard  to  the  mat- 
ters in  question,  the  views  set  forth  before  the  dispute  arise 
will  have  the  merit  of  absolute  impartiality. 

§63. 

Next  among  the  sources  of  International  Law  we  place 

Treaties. 

There  is  a wide  difference  of  opinion  with  regard  to  their 
value  as  exponents  of  the  rules  of  our  science.  On  one  side, 

we  find  the  view  that  they  are  merely  agree- 

Treaties.  J J ° 

ments  between  states  for  the  settlement  of  cur- 
rent difficulties,  and  possess  little  or  no  importance  in  the 
domain  of  international  jurisprudence.  On  the  other  hand, 


SOURCES  AND  DIVISIONS  OF  INTERNATIONAL  LAW.  95 

we  see  them,  or  rather  a selected  number  of  them,  regarded 
as  a sort  of  sacrosanct  repository  in  which  the  most  funda- 
mental principles  and  binding  rules  of  the  law  of  nations  are 
to  be  found.  The  writers  of  Great  Britain  and  the  United 
States  incline  to  the  former  view.  The  latter  is  usually 
taken  by  the  publicists  of  the  European  continent,  though 
few  of  them  would  be  prepared  to  state  it  in  the  extreme 
form  it  takes  in  the  works  of  Hautefeuille.1  In  order  to  arrive 
at  just  conclusions,  it  will  be  necessary  for  us  to  follow  the 
example  of  Hall 2 and  distinguish  between  different  kinds  of 
treaties,  though  our  classification  will  not  be  exactly  the  same 
as  his. 

We  will  consider  first  those  which  avowedly  lay  down  new 
rules  of  international  intercourse  or  change  the  international 
status  of  territories,  and  are  assented  to  vby  all  or  nearly  all 
civilized  states.  They  are  important  in  proportion  to  the 
number  of  their  signatories  and  the  length  of  time  during 
which  their  provisions  are  observed.  If  the  assent  of  all 
civilized  states  is  given  to  them,  either  by  signature  at  the 
beginning  or  by  adhesion  afterwards,  they  are  legislative  acts 
and  have  binding  power  over  all  the  members  of  the  family 
of  nations.  Such  treaties  are  very  rare,  but  it  is  hardly 
possible  to  exaggerate  their  importance  as  sources  of  Inter- 
national Law.  The  Geneva  Convention  of  1864  may  be 
cited  as  an  example.  It  neutralized  all  persons  and  things 
connected  with  the  care  of  the  sick  and  wounded  in  war ; 
and  since  the  adhesion  of  the  United  States,  who  held  aloof 
till  1882,  it  may  be  regarded  as  of  universal  obligation.  The 
Final  Act  of  the  Brussels  Conference  of  1890  for  the  sup- 
pression of  the  African  Slave  Trade  is  another  case  in  point;3 
and  it  may  be  possible  to  regard  the  Final  Act  of  the  West 
African  Conference  of  1885  in  the,  same  light.  It  was  signed, 
not  indeed  by  all  civilized  powers,  but  by  all  the  powers 
concerned  or  likely  to  be  concerned  in  the  development  of 


1 Droits  des  Nations  Neutres,  Discours  Preliminaire. 

2 International  Law,  pp.  9-13.  3 See  § 124. 


96  SOURCES  AND  DIVISIONS  OF  INTERNATIONAL  LAW. 

Africa,  including  the  United  States.1  In  recognizing  the 
establishment  of  the  Congo  Free  State,  providing  means  for 
the  neutralization  of  certain  districts  in  future  wars,  and 
making  regulations  as  to  freedom  of  trade  and  acquisitions  of 
territory  in  Africa,  it  did  a great  work  for  humanity.  The 
question  whether  it  can  be  regarded  as  a legislative  act,  and 
therefore  a direct  and  immediate  source  of  International  Law, 
raises  a difficult  problem.  Strictly  speaking,  no  state  can  be 
bound  by  a new  rule  without  its  own  consent,  and  therefore  the 
signature  of  every  member  of  the  family  of  nations  is  requisite 
in  order  to  give  universal  validity  to  fresh  arrangements.  But 
in  practice  we  find  small  and  unimportant  states  tacitly  accept- 
ing the  arrangements  made  by  great  and  influential  powers, 
especially  in  matters  which  do  not  directly  concern  their  own 
interests.  It  would  be  pedantry  to  assert  that  the  assent  of 
Switzerland,  which  possesses  neither  a ship  nor  a port,  is 
absolutely  necessary  to  give  binding  force  to  'an  agreement 
for  altering  the  rules  of  maritime  law,  or  that  no  improve- 
ment in  the  law  of  warfare  on  land  could  be  considered  uni- 
versally valid  if  it  lacked  the  signature  of  Liberia,  which  has 
no  standing  army.  These  are  extreme  cases,  and  on  the 
principle  of  de  minimis  non  curat  lex  we  may  perhaps  ignore 
them.  But  the  situation  caused  by  the  refusal  of  the  United 
States  to  sign  the  Declaration  of  Paris  of  1856  cannot  be  so 
easily  passed  over.2  The  American  mercantile  marine  and 
the  American  navy  are  not  matters  that  can  be  neglected  in 
international  affairs;  and  the  ships  of  Spain,  Mexico,  Ven- 
ezuela, and  China,  the  other  maritime  powers  who  have 
withheld  their  assent,  would  together  amount  to  a fleet  of 
considerable  importance.  It  may  be  argued  that  the  length 
of  time  that  has  elapsed  since  the  drawing  up  of  the  Declara- 
tion, coupled  with  the  fact  that  it  has  been  observed  in  all 
subsequent  wars,  causes  its  rules  to  rest  upon  the  general 
practice  of  states  as  well  as  upon  their  express  -consent.  But 
while  few  will  venture  to  dispute  the  truth  of  the  proposition 

1 British  State  Papers,  Africa,  No.  4 (1885),  pp.  304-313.  2 See  §§  216,  223. 


SOURCES  AND  DIVISIONS  OF  INTERNATIONAL  LAW.  97 


that  long  and  uninterrupted  custom  in  favor  of  a rule  makes 
it  a part  of  the  Common  Law  of  nations,  there  is  room  for 
great  divergence  of  opinion  as  to  how  long  the  custom  must 
last  in  order  to  override  previous  custom  to  the  contrary. 
The  Declaration  of  Paris  has  received  the  formal  adhesion  of 
nearly  all  civilized  powers  ; and  therefore  practice  based  upon 
it  must  be  held  to  become  law  sooner  than  if  it  had  to  win 
its  way  without  a great  international  agreement  behind  it. 
But  whether  the  time  that  has  elapsed  since  1856  is  long 
enough  to  give  the  consecration  of  usage  to  the  rules  adopted 
in  the  Declaration  is  a question  on  which  no  approach  to 
unanimity  can  be  expected.  The  best  hope  for  the  future  is 
that  it  may  cease  to  be  a question  at  all,  owing  to  the  adop- 
tion of  the  Declaration  by  those  powers  which  have  hitherto 
declined  to  sign  it,  or  the  universal  acceptance  of  some 
further  modification  of  belligerent  rights  at  sea. 

If  treaties  which  really  legislate  are  few,  treaties  which 
really  declare  the  law  are  fewer.  The  conventions  which 
embodied  the  principles  of  the  Armed  Neutralities  of  1780 
and  1800  purported  to  be  declaratory ; 1 but  in  reality  the 
major  part  of  the  rules  stipulated  for  in  them  were  well 
known  to  be  inconsistent  with  established  practice,  and  were 
introduced  for  the  purpose  of  curtailing  the  belligerent  rights 
of  Great  Britain.  The  “ Three  Rules  ” of  the  Treaty  of 
Washington  of  1871  were  agreed  upon  between  the  contract- 
ing  powers  “as  rules  to  be  taken  as  applicable  to  the  case” 
of  the  Alabama  and  her  sister  cruisers,  and  the  arbitrators 
appointed  under  the  treaty  were  instructed  to  be  guided  in 
their  decision  by  them  and  the  “principles  of  International 
Law  not  inconsistent  therewith.”2  The  United  States  held 
that  these  rules  were  in  force  when  the  acts  and  omissions 
complained  of  took  place,  while  the  British  Government 
placed  on  record  a statement  that  it  was  unable  to  agree  with 
this  view,  though  for  the  sake  of  an  amicable  settlement  it 

1 C.  de  Martens,  llecueil,  I.,  193-194  ; II.,  215-219. 

2 Treaties  of  the  United  States , p 481. 

H 


98  SOURCES  AND  DIVISIONS  OF  INTERNATIONAL  LAW. 

consented  to  be  judged  by  the  rules  as  if  they  had  been  part 
of  International  Law  when  the  alleged  offences  were  com- 
mitted. Here  then  we  have  a case  where  one  party  to  a 
treaty  regarded  an  article  in  it  as  declaratory,  while  the  other 
party  held  that  it  enunciated  new  rules.  It  is  sometimes  said 
that  the  Black  Sea  Conference  of  1871  was  declaring  Inter- 
national Law  when  it  enunciated  the  principle  that  no  power 
can  free  itself  from  treaty  engagements  except  with  the 
consent  of  the  other  contracting  powers.1  Declaratory  this 
proposition  undoubtedly  is ; but  it  is  not  declaratory  of 
International  Law.  Whether  we  argue  from  general  prin- 
ciples or  derive  our  rule  from  the  practice  of  states,  it  is 
certain  that  there  is  no  place  in  the  law  of  nations  for  the 
doctrine  of  the  perpetuity  of  treaty  obligations  unless  all  the 
powers  which  created  them  agree  to  let  them  drop.  The 
subject  is  difficult  in  any  case ; but  its  difficulties  are 
enhanced  when  high-sounding  principles  with  a strong  ring 
of  “natural  equity”  about  them  are  imported  into  the  discus- 
sion without  due  consideration  of  their  far-reaching  conse- 
quences.2 Should  a treaty  really  declaratory,  and  declaratory 
of  true  law,  be  found  to  exist,  it  would  undoubtedly  be 
a source  of  International  Law ; for  it  would  set  forth  for 
the  first  time  in  a clear  and  unmistakable  manner  a rule  of 
universal  application. 

The  next  class  of  treaties  we  have  to  consider  are  those 
which  stipulate  avowedly  for  a new  rule  or  rules  as  between 
the  contracting  parties.  They  are  signed  by  two  or  three 
states  only,  and  are  meant  to  establish  in  their  mutual  inter- 
course some  principle  of  action  not  in  general  use.  Thus 
they  are  evidence  of  what  International  Law  is  not,  rather 
than  of  what  it  is ; for  if  the  rules  they  lay  down  had  been 
embodied  in  it,  there  would  have  been  no  need  of  special 
stipulations  in  order  to  obtain  the  benefit  of  them.  The 
Treaty  of  1785  between  the  United  States  and  Prussia,  con- 
tains an  agreement  of  the  kind  under  consideration.  By  the 
1 British  State  Papers,  Protocols  of  London  Conference , 1871,  p.  7. 


SOURCES  AND  DIVISIONS  OF  INTERNATIONAL  LAW.  99 


thirteenth  article  the  contracting  powers  declared  that  in  case 
one  was  at  war  while  the  other  was  at  peace,  the  belligerent 
would  not  confiscate  contraband  goods  carried  by  a vessel  of 
the  neutral,  but  would  be  content  to  detain  them  instead.1 
The  Common  Law  of  nations  gives  the  right  of  confiscation, 
as  the  negotiators  on  both  sides  well  knew.  And  because 
they  knew  it,  they  entered  into  stipulations  to  override  the 
ordinary  rule  and  substitute  for  it  one  which  they  preferred. 
It  is  clear  that  treaties  of  this  kind  are  not  sources  of  Inter- 
national Law.  Only  in  one  case  can  they  become  so,  and 
that  is  when  the  new  rule  first  introduced  by  one  of  them 
works  so  well  in  practice  that  other  states  adopt  it.  If  they 
take  it  up  one  by  one  till  all  observe  it,  the  first  treaty  in 
which  it  appears  is  its  Source,  though  a long  interval  of  time 
may  separate  its  original  appearance  from  its  final  triumph. 
An  instance  of  this  is  to  be  found  in  the  history  of  the 
famous  rule,  Free  ships,  free  goods.  The  first  treaty  between 
Christian  powers  which  contains  it  was  negotiated  between 
Spain  and  the  Netherlands  in  1650; 2 and  is  therefore  its 
source,  though  the  rule  has  been  obliged  to  wait  till  our  own 
day  before  it  has  received  such  general  acceptance  as  to  make 
it  part  and  parcel  of  the  public  law  of  the  civilized  world. 

The  last  and  most  numerous  class  of  treaties  are  those 
which  contain  no  rules  of  international  conduct,  but  simply 
settle  the  matters  in  dispute  between  the  parties  to  them. 
The  great  majority  of  diplomatic  instruments  belong  to  this 
class,  for  as  a rule  when  states  come  to  negotiate  they  are  far 
more  intent  upon  getting  rid  of  present  difficulties  than  lay- 
ing down  rules  and  doctrines  for  the  future.  Compromise  is 
the  order  of  the  day,  and  what  is  expedient  at  the  moment  is 
adopted  without  much  thought  of  its  relation  to  general 
principles.  It  is  obvious  that  treaties  negotiated  in  this 
spirit  do  not  affect  International  Law  at  all,  and  are  not 
intended  to  do  so. 

1 Treaties  of  the  United  States,  p.  903. 

2 Dumont,  Corps  Diplomatique , Vol.  VI.,  Pt.  I.,  p.  571. 


100  SOURCES  AND  DIVISIONS  OF  INTERNATIONAL  LAW. 


When  we  speak  of  treaties  we  must  be  understood  to 
mean  separate  articles  as  well  as  entire  documents.  Most 
international  instruments  contain  stipulations  on  more  mat- 
ters than  one,  and  important  treaties  generally  deal  with  a 
great  variety  of  subjects.  One  of  them  may,  therefore,  afford 
examples  of  several  of  the  classes  given  above.  In  going 
through  them  we  have  seen  that  both  the  extreme  views  of 
the  British  School  and  the  extreme  views  of  the  Continental 
School  fail  to  set  forth  certain  aspects  of  the  truth.  Some 
treaties,  but  very  few,  are  from  the  beginning  Sources  of 
Law.  Some  treaties,  but  very  few,  become  after  a greater  or 
less  time  Sources  of  Law.  But  the  vast  majority  of  treaties 
are  valueless  as  evidence  of  what  the  law  is,  though  they  may 
be  of  the  highest  importance  as  creating  new  political  arrange- 
ments or  removing  old  subjects  of  contention. 

§ 64. 

W e now  pass  on  to  deal  with 

The  decisions  of  Prize  Courts , International  Conferences,  and 
Arbitral  Tribunals 

considered  as  sources  of  International  Law.  Prize  Courts 
are  tribunals  set  up  by  belligerent  states  for  the  purpose  of 
Decisions  of  Prize  deciding  upon  the  validity  of  the  captures  made 

Courts,  Interna-  _ ° L . J . 

tionai Conferences,  by  their  cruisers.  They  are  supposed  to  admin- 
bunals-  ister  International  Law,  and  they  do  so  unless 

the  properly  constituted  authorities  of  their  own  states 
order  them  to  carry  into  effect  instead  rules  inconsistent  there- 
with. Such  interferences  are  fortunately  rare ; and  accord- 
ingly it  happens  that  the  decisions  of  Prize  Courts  are 
respected  in  proportion  to  the  reputation  for  learning,  ability, 
and  impartiality  enjoyed  by  their  judges.  Those  who  preside 
over  these  courts  have  to  remember  that  International  Law 
has  no  locality,  and  must  strive  to  divest  themselves  of  all 
prepossessions  in  favor  of  their  own  country.  As  one  of 


SOURCES  AND  DIVISIONS  OF  INTERNATIONAL  LAW.  101 


the  most  distinguished  of  them  said,  when  trying  a case  in 
which  the  claims  of  Great  Britain  as  a belligerent  came  into 
sharp  conflict  with  the  claims  of  Sweden  as  a neutral,  “It  is 
the  duty  of  the  person  who  sits  here  to  determine  this  ques- 
tion exactly  as  he  would  determine  the  same  question  if  sit- 
ting at  Stockholm  ; to  assert  no  pretensions  on  the  part  of 
Great  Britain  which  he  would  not  allow  to  Sweden  in  the 
same  circumstances  ; and  to  impose  no  duties  on  Sweden,  as 
a neutral  country,  which  he  would  not  admit  to  belong  to 
Great  Britain  in  the  same  character.”  1 This  high  standard 
has  not  always  been  reached ; but  some  of  the  great  orna- 
ments of  the  bench  have  attained  to  it,  and  by  their  legal 
acumen,  joined  with  their  undoubted  impartiality,  have 
enriched  the  literature  of  International  Law  with  a series  of 
profound  judgments  which  are  quoted  with  respect  wherever 
competent  scholars  discuss  the  rights  and  duties  of  civilized 
states.  The  names  of  Story  the  American,  Stowell  the 
Englishman,  and  Portalis  the  Frenchman,  will  live  as  long 
as  the  law  of  nations  endures.  Most  of  the  cases  which  come 
before  Prize  Courts  require  nothing  more  for  their  solution 
than  the  application  of  well-known  and  universally  accepted 
rules  ; but  occasionally  a new  point  arises,  and  then  the  deci- 
sion of  a great  judge  may  become  a source  of  International 
Law.  At  the  moment  he  does  no  more  than  determine  the 
case  before  him ; but  the  justice  and  reasonableness  of  the 
rules  he  lays  down  may  lead  to  their  acceptance  by  other 
courts  and  in  other  countries,  and  thus  in  time  they  become 
incorporated  into  International  Law.  When  a highly  trained 
intellect,  after  hearing  and  reading  carefully  sifted  evidence 
and  listening  to  the  arguments  of  able  counsel,  applies  recog- 
nized principles  to  new  circumstances,  the  result  is  not 
unlikely  to  be  a rule  of  practice  which  stands  the  test  of 
time  and  proves  to  be  of  universal  application.  It  was  thus 
that  the  doctrine  of  continuous  voyages  was  introduced  into 

1 Lord  Stowell’s  Judgment  in  the  case  of  the  Maria;  see  Robinson,  Admi- 
ralty Beports,  I.,  340. 


102  SOURCES  AND  DIVISIONS  OF  INTERNATIONAL  LAW. 


International  Law.  Lord  Stowell  first  invented  it  to  meet 
the  case  of  neutral  vessels  which,  in  the  war  between  Great 
Britain  and  Revolutionary  and  Imperialist  France,  had  en- 
deavored to  evade  a prohibition  to  engage  in  the  enemy’s 
carrying  trade  by  interposing  a neutral  port  between  their 
point  of  departure  and  the  forbidden  destination.  Whatever 
may  be  thought  of  the  original  attempt  to  curtail  the  area  of 
neutral  trade,  there  can  be  no  doubt  that  the  doctrine  of 
Lord  Stowell  was  sound,  and  that  it  could  be  applied  with 
perfect  propriety  to  cases  of  blockade  and  contraband,  where 
the  right  of  the  belligerent  to  interfere  is  clear  and  unmis- 
takable. Accordingly,  the  rule  was  so  applied,  and  general 
acceptance  has  made  it  a part  of  the  law  of  nations.  Ameri- 
can vessels  were  the  chief  sufferers  from  it  at  first ; but  the 
courts  of  America  not  only  adopted  it  in  the  civil  war  with 
the  Southern  Confederacy,  but  gave  it  an  extension  which  is 
looked  upon,  in  some  quarters,  with  suspicion  and  dread.1 
The  activity  of  Prize  Courts  is  expended  for  the  most  part 
upon  questions  of  pure  maritime  law ; and  consequently  that 
portion  of  the  International  Code  has  a clearness  and  pre- 
cision unfortunately  absent  from  some  of  its  other  titles. 
But  International  Conferences  and  Arbitral  Tribunals  deal 
with  any  matters  that  are  referred  to  them,  and  their  deci- 
sions may,  therefore,  embrace  subjects  wholly  removed  from 
the  sea  and  the  affairs  connected  with  it.  Thus  the  decision 
of  Marshal  MacMahon,  given  in  1875,  as  arbitrator  in  the 
dispute  between  Great  Britain  and  Portugal  with  regard  to 
Delagoa  Bay,  did  much  to  clear  up  a difficult  point  in  the 
law  of  Occupation,2  and  it  is  quite  possible  that  the  decisions 
of  the  West  African  Conference  of  1884-1885,  upon  the  noti- 
fications to  be  given  to  one  another  by  the  parties  to  it  of  any 
fresh  acquisition  of  African  territory  by  Occupation,  may  in 
time  develop  into  a general  rule  of  International  Law.3 

In  estimating  the  relative  value  of  the  decisions  of  Prize 
Courts  and  other  tribunals  on  the  one  hand,  and  the  writings  of 
1 See  § 276.  2 See  § 93.  3 See  § 95. 


SOURCES  AND  DIVISIONS  OP  INTERNATIONAL  LAW.  103 


the  great  publicists  and  the  provisions  of  treaties  on  the  other, 
we  must  remember  that  the  British  and  American  lawyer  is 
brought  up  in  reverence  for  the  judgments  given  by  great 
judges  in  cases  that  have  actually  occurred,  whereas  the 
lawyer  of  France  or  Germany  looks  to  the  Code  of  his 
country  and  to  the  Code  only.  In  these  and  many  other 
countries  the  decisions  of  courts  do  no  more  than  settle  the 
cases  before  them.  No  legal  rules  are  deduced  from  the  judg- 
ments rendered  ; and  precedents  count  for  little  in  argument. 
Accordingly,  when  a jurist  turns  his  attention  to  inter- 
national affairs  he  brings  to  their  investigation  a mental 
habit  already  formed.  If  he  belongs  to  one  of  the  countries 
of  the  Continent  of  Europe  he  will  instinctively  search  for  a 
Code,  and  will  find  some  approach  to  one  in  the  writings 
of  publicists  of  repute  and  in  collections  of  great  treaties. 
But  a British  or  American  jurist  as  naturally  and  uncon- 
sciously commences  to  examine  recorded  cases,  and  finds  in 
them  the  most  authoritative  statements  of  the  rules  he  is 
searching  for.  Each  attitude  is  correct  within  limits  ; but,  if 
carried  to  excess,  leads  to  erroneous  conclusions.  In  the  con- 
sideration we  have  given  to  authoritative  books,  treaties,  and 
judicial  or  quasi-judicial  decisions,  we  have  endeavored  to 
discover  by  careful  analysis  their  value  as  sources  of  Inter- 
national Law ; but  it  must  always  be  borne  in  mind  that  no 
rule,  wherever  found,  can  be  regarded  as  law  till  it  has 
received  the  express  or  tacit  consent  of  states  and  has  been 
generally  adopted  in  transactions  between  them. 

§ 65. 

Next  among  the  sources  of  International  Law  come 
State  Papers  other  than  Treaties. 

Treaties  are  national  acts  of  a specially  deliberate  and 
solemn  kind,  and  are  rightly  placed  in  a class  state  papers  other 
by  themselves.  But  other  state  papers  may  be  than  treatie8' 
important  as  sources  of  International  Law.  Questions  at 


104  SOURCES  AND  DIVISIONS  OE  INTERNATIONAL  LAW, 


issue  between  states  are  often  discussed  in  them  with  con- 
spicuous learning  and  ability,  and  occasionally  an  inter- 
national controversy  clears  up  a disputed  legal  point  or 
advances  the  application  of  principles  which  have  before 
received  little  more  than  an  otiose  assent.  Thus  the  Silesian 
Loan  Controversy  between  Great  Britain  and  Prussia  in  the 
middle  of  the  eighteenth  century  1 placed  beyond  possibility 
of  doubt  the  rule  that  a state  cannot  make  reprisals  upon 
money  lent  to  it  by  private  persons  belonging  to  another 
country.  And  again,  the  stand  taken  by  the  United  States 
Government  first  in  1793  in  favor  of  a wide  interpretation 
and  strict  enforcement  of  its  own  neutrality  obligations,2 
and  afterwards,  a generation  ago,  against  a somewhat  loose 
interpretation  of  the  duties  of  neutrality  by  Great  Britain 
in  the  case  of  the  Alabama  and  her  sister  cruisers,3  has  led 
to  a great  increase  in  the  strictness  with  which  the  prin- 
ciple of  absolute  impartiality,  conceded  on  paper,  but  till 
recently  not  very  closely  adhered  to  in  practice,  has  been 
applied  to  the  conduct  of  neutral  states.  The  controver- 
sies attending  the  formation,  progress,  and  dissolution  of 
the  two  great  leagues  known  as  the  Armed  Neutralities  of 
1780  and  1800  4 did  almost  as  much  to  clear  up  the  question 
of  neutral  rights  as  the  Alabama  controversy  and  the  action 
of  Washington  in  his  second  administration  did  to  clear  up 
the  question  of  neutral  duties.  Many  state  papers  are, 
from  a legal  point  of  view,  worthless;  others  have  but  a 
temporary  and  evanescent  value.  But  now  and  again  some 
master  mind  produces  a document  or  series  of  documents 
which  change  the'  whole  course  of  international  relations 
and  become  sources  of  law.  It  must  be  remembered  that 
a large  proportion  of  the  questions  which  arise  between 
states  are  never  heard  of  outside  the  walls  of  foreign  offices. 
Either  they  are  too  simple  to  admit  of  doubt,  or  they  are  at 
once  referred  to  the  law  officers  of  the  governments  con- 

1 See  § 198.  3 See  §§  261-263. 

2 See  § 244.  4 Manning,  Law  of  Nations , Bk.  V.,  Ch.  VI. 


SOURCES  AND  DIVISIONS  OF  INTERNATIONAL  LAW.  105 

cerned,  whose  opinion,  given  officially  but  not  published 
at  the  time,  if  ever,  is  taken  as  conclusive  and  acted  upon 
immediately.  In  this  way  International  Law  is  always  un- 
dergoing a process,  not  indeed  of  formation,  but  of  crystal- 
lization. Floating  ideas  harden  into  definite  rules,  or  one 
of  two  opposite  views  receives  almost  imperceptibly  the  con- 
secration of  practice. 


§ 66. 

The  last  of  the  classes  into  which  we  divide  the  sources 
of  International  Law  may  be  described  as 

Instructions  issued  by  States  for  the  Gruidance  of  their  own 
Officers  and  Tribunals. 

We  have  not  considered  these  documents  under  the  previ- 
ous head,  because  they  are  of  a domestic  character,  and  are 
not  drawn  up  with  a view  to  any  controversy  instructions  is- 
between  states.  But  though  they  have  no  the'ouWance  of°r 

. pi  their  own  Officers 

other  object  than  the  regulation  of  the  con-  and  Tribunals, 
duct  of  the  agents  and  servants  of  the  government  which 
issues  them,  they  may  have  a far  wider  effect  than  was 
intended  or  expected  by  their  authors.  When  drawn  by 
skilled  jurists,  they  sometimes  decide  knotty  points  in  a 
manner  which  proves  so  valuable  in  practice  that  other 
states  adopt  it.  The  French  Marine  Ordinance  of  1681  dealt 
with  the  then  nebulous  and  uncertain  subject  of  Prize  Law 
in  a masterly  manner.  It  was  commented  on  by  Valin  in 
1760,  and  from  it  Lord  Stowell  borrowed  freely  in  his  judg- 
ments on  maritime  cases.  Thus  what  was  originally  in- 
tended as  a guide  to  French  cruisers  and  French  tribunals 
became  in  time,  and  as  to  some  of  its  provisions,  a source 
of  International  Law.  The  Instructions  for  the  Guidance 
of  the  Armies  of  the  United  States  in  the  Field  bid  fair  to 
attain  a similar  position  in  respect  of  warfare  on  land. 
Already  they  have  been  referred  to  and  quoted  with  great 


106  SOURCES  AND  DIVISIONS  OP  INTERNATIONAL  LAW. 


respect  in  many  treatises,1  and  several  states  have  issued 
corresponding  manuals,  all  of  which  concur  in  making  the 
laws  of  warfare  on  land  more  humane  than  they  have  been 
even  in  recent  practice. 

We  have  now  been  through  the  various  sources  of  Inter- 
national Law.  We  see  that  any  national  act  whereby  a 
state  signifies  its  assent  to  a given  rule  may  become  a 
source  of  law,  provided  that  the  rule  in  question  is  a new 
one.  If  it  wins  general  assent  it  becomes  a part  of  Inter- 
national Law.  If  it  fails  to  be  adopted  in  practice,  it  is  but 
a pious  opinion,  however  excellent  it  may  he  in  itself.  But 
universal  obedience  is  not  meant  when  we  speak  of  general 
assent.  Many  rules  of  International  Law  have  been  vio- 
lated on  one  pretext  or  another  by  states  which  fully 
acknowledge  their  validity.  No  law  can  expect  to  be 
always  obeyed,  least  of  all  a law  which  has  no  power  at  its 
hack  to  compel  submission  and  punish  disobedience.  But 
though  International  Law  is  in  this  predicament,  it  is  also 
true  that  flagrant  and  stubborn  disregard  of  its  well-estab- 
lished precepts  is  very  rare,  and  that  states  on  the  whole 
show  a praiseworthy  willingness  to  govern  their  conduct 
towards  each  other  by  rules  to  which  they  have  given  an 
express  or  tacit  consent. 


§67. 

From  the  sources  of  International  Law  we  pass  to  its 
divisions.  There  is  no  subject  on  which  the  publicists  of  the 
Divisions  of  inter-  seventeenth  and  eighteenth  centuries  are  more 
Tht oid  attempts  at  variance  with  each  other  than  this.  Grotius, 
at  division  useless.  ag  we  pave  seen,2  distinguished  between  a Nat- 
ural and  a Voluntary  Law  of  Nations.  His  successors  dis- 
cussed at  length  the  relations  of  Natural  Law  to  Interna- 
tional Law,  and  their  distinctions  and  conditions  multiplied 
as  each  one  commented  upon  the  opinions  of  his  predeces- 


1 E.g.,  Maine,  International  Law,  p.  24. 


2 See  § 33. 


SOUKCES  AND  DIVISIONS  OF  INTEKNATIONAL  LAW.  107 

sors.  The  climax  of  complication  was  reached  when  Chris- 
tian von  Wolf,  a Professor  at  Halle,  in  the  preface  of  his 
Jus  G-entium,  published  in  1749,  divided  the  law  of  nations 
into  Natural  or  Necessary  Law,  Voluntary  Law,  Conven- 
tional Law,  and  Customary  Law;  and,  as  if  these  were  not 
enough,  referred  incidentally  to  an  Internal  and  an  Exter- 
nal Law.  Other  writers  simplified  these  divisions  to  some 
extent;  but  still  a most  unnecessary  and  unprofitable  elabo- 
ration was  kept  up.  Even  Wheaton  accepts  the  distinction 
between  a Natural  and  a Voluntary  Law  of  Nations,  and 
argues  that  the  V oluntary  Law  is  a genus , comprising  the 
two  species  of  Conventional  Law  introduced  by  treaty,  and 
Customary  Law  derived  from  usage.1  But,  like  other 
writers,  he  forgets  or  ignores  these  distinctions  when  he 
sets  forth  the  actual  rules  of  his  science.  He  does  not  then 
give  us  a chapter  or  two  on  Natural  Law  and  many  chap- 
ters on  Voluntary  Law  with  its  two  great  subdivisions. 
But  instead  we  have  a most  able  and  instructive  series  of 
chapters  on  the  various  rights  possessed  by  states,  and  on 
War  and  Neutrality,  in  the  course  of  which  we  are  not  even 
informed  whether  a given  rule  comes  from  convention  or 
from  usage,  so  completely  are  the  divisions  originally  given 
dropped  when  the  work  of  dealing  with  the  subject  in  a 
systematic  manner  is  seriously  undertaken.  Divisions  which 
do  not  divide  are  useless;  and  in  the  present  case  some  of 
them  are  mischievous  as  well,  for  they  imply  a belief  in  the 
theory  that  by  some  process  of  reasoning  or  intuition  a law 
can  be  evolved  which  is  binding  on  states  apart  from  their 
consent,  and  thus  tend  to  revive  the  old  confusion  between 
what  is  and  what  ought  to  be.  Instead  of  attempting  the 
unprofitable  task  of  distinguishing  the  rules  of  International 
Law  according  to  their  origin,  it  is  better  to  divide  the  sub- 
ject into  heads  according  to  the  different  kinds  of  rights 
possessed  by  states  and  their  corresponding  obligations. 


1 International  Law,  § 9. 


108  SOURCES  AND  DIVISIONS  OF  INTERNATIONAL  LAW. 


§68. 

If  we  make  our  attempt  at  division  on  the  lines  just  indi- 
cated, we  shall  find  at  once  that  states  possess,  by  virtue  of 
states  possess  law  they  have  created  for  themselves,  cer- 

nOTmai rightsand  tain  rights  and  obligations  in  their  ordinary 
obligations.  condition  of  peace,  and  that  certain  other  rights 
and  obligations  are  obtained,  in  addition  to  or  in  qualification 
of  these,  when  a state  is  in  the  condition  of  belligerency  or 
neutrality.  Fortunately,  in  the  modern  world,  peace  is  re- 
garded as  the  usual  and  proper  condition  for  nations.  No 
writer  would  now  venture  to  say  with  Machiavelli,  “ A 
prince  is  to  have  no  other  design,  or  thought,  or  study  but 
war,  and  the  art  and  discipline  of  it.”1  We  have  come  to 
regard  the  business  of  good  government  as  the  most  im- 
portant art  of  rulers,  and  to  include  in  it  the  practice  of  all 
honorable  means  of  avoiding  war.  The  rights  and  obliga- 
tions which  belong  to  states  in  their  capacity  of  members  of 
the  family  of  nations  are  connected  with  peace  and  the  state 
of  peace.  They  may  be  called  normal  rights  and  obligations, 
and  they  are  possessed  by  every  independent  state  which  is 
a subject  of  International  Law.  Just  as  the  law  of  the  land 
clothes  every  child  born  under  its  authority  with  certain 
rights  which  are  his  through  no  act  of  his  own,  so  Inter- 
national Law  gives  to  the  states  under  its  authority  certain 
rights  which  belong  to  them  through  the  mere  fact  of  sub- 
jection to  it.  And  just  as  an  individual  can,  by  the  exercise 
of  his  will,  place  himself  in  a position  whereby  he  acquires 
rights  and  obligations  he  did  not  possess  before,  so  a state 
can  by  an  act  of  corporate  volition  place  itself  in  a position 
whereby  it  acquires  rights  and  obligations  it  did  not  possess 
before.  No  man,  for  instance,  can  marry  without  making  up 
his  mind  to  do  so ; and  no  state  can  go  to  war  or  remain 
neutral  in  a war  between  other  states  without  making  up  its 
mind  to  do  so.  But  if  a man  does  enter  into  matrimony,  he 
1 The  Prince , Ch.  XIV. 


SOURCES  AND  DIVISIONS  OF  INTERNATIONAL  LAW.  109 


acquires  rights  which  did  not  belong  to  him  as  a mere  subject 
and  citizen,  and  comes  under  obligations  which  were  not 
binding  upon  him  in  his  previous  condition ; and  if  a state 
becomes  a belligerent  or  a neutral,  it  acquires  rights  and 
becomes  liable  to  obligations  of  which  it  knew  nothing  as  a 
mere  subject  of  International  Law.  A belligerent,  for  ex- 
ample, has,  in  the  right  of  search,  a power  over  neutral 
vessels  it  could  not  exercise  in  its  ordinary  condition  of 
peace  ; 1 and  its  obligation  to  submit  to  restrictions  upon  the 
freedom  of  its  cruisers  to  stay  in  the  ports  of  friendly  powers 
and  make  what  purchases  they  please  there,  modifies  a pre- 
viously existing  right  of  unrestricted  intercourse.2  Those 
rights  and  obligations  which  a state  possesses  as  a belligerent 
or  a neutral  we  may  call  abnormal,  to  distinguish  them  from 
the  normal  rights  and  obligations  which  belong  to  it  as  a 
subject  of  International  Law.  And  this  distinction  is  funda- 
mental. It  gives  us  our  first  great  division,  and  is  the  pivot 
on  which  our  whole  classification  turns. 

§ 69. 

Starting,  then,  with  the  normal  rights  and  obligations  of 
states,  we  find  that  they  are  concerned  with  Independence, 
Property,  Jurisdiction,  Equality,  and  Diplomacy.  Normal  rights 
Each  of  these  gives  us  an  important  subject,  are  connected  with 
fairly  well  marked  off  from  other  subjects,  and  Property,  Juris- 
capable  of  being  treated  by  itself  as  a distinct  and'rMpiomac'yf’ 

, , J ix  abnormal  rights 

head,  lhe  rules  of  International  Law  group  and  obligations 
themselves  under  these  heads  in  a convenient  Neutrality, 
manner  without  much  overlapping ; and  we  thus  obtain  a 
means  of  dividing  one  portion  of  our  subject  into  titles  or 
chapters  in  a way  which  shows  the  relation  of  its  various 
parts  to  one  another  and  to  the  whole.  The  other  great 
division,  that  of  the  abnormal  rights  and  obligations  of 
states,  naturally  falls  under  two  heads — -those  of  War  and 
1 See  § 210.  2 See  § 251. 


110  SOURCES  AND  DIVISIONS  OF  INTERNATIONAL  LAW. 


Neutrality.  Each  of  these  is  very  important,  and  requires 
more  space  for  its  consideration  than  any  one  of  the  subjects 
enumerated  in  connection  with  normal  rights  and  obligations. 
We  shall,  therefore,  subdivide  them  when  we  come  to  deal 
with  them  in  detail.  Here  it  will  be  sufficient  to  remark 
that,  since  normal  rights  and  obligations  are  connected  with 
peace,  we  obtain  a division  of  International  Law  into  the  Law 
of  Peace,  the  Law  of  War,  and  the  Law  of  Neutrality,  each 
of  which  will  be  considered  in  one  of  the  three  following 
parts  of  this  book.  The  subjoined  table  will  enable  the 
student  to  see  at  a glance  the  arrangement  of  our  subject  we 
propose  to  adopt. 

INTERNATIONAL  LAW. 


fO) 


Normal 
Rights  and 
Obliga-  - 
tions  of 
States. 


(2) 

(3) 

(4) 


(5) 

Abnormal  f (1) 
Rights  and 
Obliga-  4 ™ 
tions  of  4“/ 
States. 


► Law  of  Peace. 


Rights  and  Obligations  connected- 
with  Independence. 

Rights  and  Obligations  connected 
with  Property. 

Rights  and  Obligations  connected 
with  Jurisdiction. 

Rights  and  Obligations  connected 
with  Equality. 

Rights  and  Obligations  connected 
with  Diplomacy. 

Rights  and  Obligations  connected  > j^aw  -yyar 
with  War.  ) 

Rights  and  Obligations  connected  ) Law  of  Neutrality. 
with  Neutrality.  ) 


The  divisions  of  this  table  are  clear  and  definite,  and  it 
is  hoped  that  the  principles  on  which  they  are  based  will 
commend  themselves  to  the  judgment  of  intelligent  readers. 


Part  II. 


TEE  LAW  OF  PEACE. 

CHAPTER  I. 

RIGHTS  AND  OBLIGATIONS  CONNECTED  WITH  INDEPENDENCE. 

§70. 

Independence  may  be  defined  as  The  right  of  a state  to 
manage  all  its  affairs , whether  external  or  internal , without 
interference  from  other  states , as  long  as  it  re-  Definition  and 
spects  the  corresponding  right  possessed  by  each  “hTonnde0 
fully-sovereign  member  of  the  family  of  nations.  Pendence- 
This  right  of  independent  action  is  the  natural  result  of  sov- 
ereignty : it  is,  in  fact,  sovereignty  looked  at  from  the  point 
of  view  of  other  nations.  When  a state  is  entirely  its  own 
master,  it  is  sovereign  as  regards  itself,  independent  as 
regards  others.  Independence  is,  therefore,  predicated  by 
modern  International  Law  of  all  the  sovereign  states  who 
are  its  subjects. 

But  it  must  not  be  forgotten  that,  till  the  time  of  Grotius, 
the  notion  of  universal  sovereignty  was  the  dominant  con- 
ception in  the  minds  of  thinkers  and  writers  on  international 
relations.  They  held  that  there  was,  or  at  least  that  there 
ought  to  be,  a common  superior  over  nations.  The  last  lin- 
gering remnants  of  this  idea  were  shattered  in  the  storms  of 

ill 


112 


EIGHTS  AND  OBLIGATIONS 


the  Reformation,  and  the  doctrine  of  the  independence  of 
states  was  substituted  for  it  by  the  great  Protestant  jurists 
to  whom  we  owe  the  form  which  International  Law  has 
assumed  in  modern  times.  There  is  a tendency  on  the  part 
of  many  writers  to  regard  independence  and  sovereignty  as 
attributes  of  states,  conferred  on  them  in  some  mysterious 
manner,  quite  apart  from  the  provisions  of  the  law  which 
defines  their  rights  and  obligations.  We  are  told  that  they 
spring  from  the  nature  of  the  society  existing  among  nations, 
that  they  are  necessary  to  the  conception  of  a state,  or  that 
they  are  conferred  by  the  Great  Author  of  society.  Such 
speculations  are  shown  to  be  baseless  by  a simple  reference 
to  the  facts  of  history.  States,  like  individuals,  have  what 
rights  are  conferred  upon  them  by  the  law  under  which  they 
live.  There  was  a time  when  their  full  independence  was 
denied  by  the  law  then  existing.  But  since  the  Peace  of 
Westphalia  of  1648  brought  into  existence  the  modern  Euro- 
pean order,  the  principle  of  complete  independence  has  been 
accepted  by  statesmen  and  embodied  in  the  international 
code  of  the  civilized  world. 

§71. 

Part-sovereign  states  do  not  possess  the  right  of  inde- 
pendence to  the  full,  though  to  save  appearances  they  are 
Part-sovereign  sometimes  spoken  of  in  diplomatic  documents 
independent!17  as  independent.  But  it  is  clear  that  limitations 
on  their  external  sovereignty  are  also  limitations  on  their  in- 
dependence. For  instance,  by  Article  4 of  the  Treaty  of  Feb- 
ruary 27, 1884,  the  Transvaal  Republic  of  South  Africa  agreed 
to  make  “no  treaty  with  any  other  state,  other  than  the  Or- 
ange Free  State,  nor  with  any  native  tribe  east  or  west  of  the 
Republic,  without  the  approval  of  Great  Britain.”  Inasmuch, 
therefore,  as  the  rulers  of  the  Transvaal  are  bound  to  obtain 
the  assent  of  Great  Britain  before  they  can  take  effective 
action  in  a most  important  sphere,  the  Boer  Republic  cannot, 


CONNECTED  WITH  INDEPENDENCE.  113 

in  strictness,  be  said  to  possess  the  full  rights  of  indepen- 
dence, though  it  is  called  an  independent  state  in  treaties  and 
despatches. 

§ 72. 

Even  in  the  case  of  fully  sovereign  states,  and  in  regard 
to  the  conduct  of  the  most  powerful  among  them,  restrictions 
upon  unlimited  freedom  of  action  are  imposed  voluntary  restric- 

. , , • , i . tions  upon  the 

temporarily  by  events  and  circumstances;  but  freedom  of  action 
since  they  are  not  permanent  legal  incidents  of  states.ereign 
the  political  existence  of  the  communities  subjected  to  them, 
but  are  in  the  main  necessary  conditions  of  social  life 
imposed  by  the  good  sense  of  the  powers  concerned,  they 
do  not  detract  from  the  independence  and  sovereignty  of  the 
states  which  live  under  them.  They  often  spring  from 
treaty  stipulations  entered  into  voluntarily  by  governments 
to  avoid  difficulties  in  their  future  intercourse.  For  example, 
the  United  States  and  Great  Britain  bound  themselves  by 
the  Clayton-Bulwer  Treaty  of  1850  to  acquire  no  territory  in 
Central  America ; 1 and  in  1886  Great  Britain  and  Ger- 
many made  a formal  declaration  whereby  the  limits  of  their 
respective  spheres  of  influence  in  the  Western  Pacific  were 
defined,  and  each  power  pledged  itself  not  to  intrude  into 
the  region  assigned  to  the  other.2  Another  source  of  self- 
imposed  restrictions  upon  the  freedom  of  action  granted 
by  the  right  of  independence  is  to  be  found  in  consideration 
for  the  corresponding  right  of  other  states.  Just  as  in  the 
society  formed  by  individuals,  friendly  intercourse  would  be 
impossible  if  each  insisted  upon  using  the  full  freedom 
secured  to  him  by  law  without  regard  to  the  feelings  and 
convenience  of  his  neighbors,  so  in  the  society  of  nations  a 
similar  abstinence  is  necessary,  if  peace  and  harmony  are  to 
be  preserved.  Mutual  concession  is  the  price  paid  for  social 
life.  A state  which  conducted  its  foreign  policy,  regulated 

1 Treaties  of  the  United  States,  p.  441. 

2 British  State  Papers,  Western  Pacific,  No.  1 (1886). 


114 


RIGHTS  AND  OBLIGATIONS 


its  commerce,  and  exercised  its  jurisdiction  without  thought 
or  care  for  the  wishes  and  interests  of  other  states,  would 
doubtless  be  within  its  strict  right  as  an  independent  political 
community ; but  it  would  soon  discover  that  it  was  regarded 
as  an  international  nuisance  and  subjected  to  an  exceedingly 
unpleasant  process  of  retaliation. 

§73. 

Sometimes  an  independent  state  finds  itself  obliged  to 
submit  for  a while  to  restraints  imposed  upon  it  by  superior 
Involuntary  re-  force,  as  when  Prussia  was  forbidden  by  Napo- 
freedom ofaction16  leon  in  1808  to  keep  up  an  army  of  more  than 
of eovereign  states,  40i000  men?i  and  Russia  and  Turkey  were  com- 
pelled by  the  Treaty  of  Paris  of  1856  not  to  build  “military- 
maritime  arsenals  ” on  the  coast  of  the  Black  Sea,  and  not  to 
maintain  ships  of  war  thereon.2  Such  stipulations  as  these 
are  not  uncommon  in  the  history  of  international  transactions. 
They  are  frequently  imposed  on  a defeated  belligerent  as 
part  of  the  price  of  peace.  The  powers  subjected  to  them 
constantly  evade  them,  and  always  take  the  first  opportunity 
of  throwing  them  off.  Prussia  foiled  Napoleon’s  design  of 
keeping  her  powerless  as  a military  state  by  passing  the  pick 
of  her  able-bodied  young  men  through  her  small  army  and 
keeping  them  trained  in  a reserve  force ; and  Russia  took 
advantage  of  the  Franco-Prussian  war  of  1870  to  obtain  by 
the  Convention  of  London  of  1871  a formal  release  from  her 
engagements  as  to  the  Black  Sea.3  Such  limited  and  tempo- 
rary restraints  upon  the  freedom  of  action  of  a state  are  not 
held  to  derogate  from  its  independence.  They  are  passing 
incidents  in  its  career,  not  permanent  legal  conditions  of  its 
existence.  And  the  same  thing  may  be  said  of  the  authority 
assumed  by  the  Great  Powers  of  Europe  in  the  Old  World 
and  the  United  States  on  the  American  continent.  There 

1 Fyffe,  Modern  Europe , I.,  382. 

2 Holland,  European  Concert  in  the  Eastern  Question , p.  247.  3 Ibid.  p.  273. 


CONNECTED  WITH  INDEPENDENCE. 


115 


can  be  no  doubt  that  the  Great  Powers  have,  on  several 
occasions,  acted  in  the  name  and  on  behalf  of  all  Europe,1 
and  that  the  smaller  states  have  willingly  or  unwillingly 
accepted  the  arrangements  made  by  them.  In  America 
there  seems  an  increasing  tendency  to  accord  to  the  United 
States  a position  of  primacy.  But  it  would  be  mere  pedantry 
to  assert  that  occasional  deference  to  the  will  of  one  or  the 
other  of  these  authorities  deprived  a state  of  its  independent 
position  under  the  law  of  nations. 

§74. 

The  right  of  independence  conferred  by  International  Law 
upon  each  fully  sovereign  member  of  the  family  of  nations 
involves,  as  we  have  seen,  complete  liberty  on 

. » . , , • , rr  • Intervention  — its 

the  part  ot  every  state  to  manage  its  altairs  essential  charac- 
according  to  its  own  wishes.  It  may  change 
its  form  of  government,  alter  its  constitution,  form  its  alli- 
ances, and  enter  upon  its  wars  according  to  its  own  views  of 
what  is  just  and  expedient.  But  sometimes  it  happens  that 
another  state,  or  a group  of  states,  interferes  with  its  pro- 
ceedings, and  when  it  is  engaged  in  internal  turmoil  or 
external  conflict  endeavors  to  compel  it  to  do  something 
which,  if  left  to  itself,  it  would  not  do,  or  refrain  from  doing 
something  which,  if  left  to  itself,  it  would  do.  Interference 
of  this  kind  is  called  intervention.  History  teems  with 
instances  of  it.  It  has  been  undertaken  on  various  pre- 
texts, and  justified  by  the  most  diverse  reasonings.  In  every 
case  of  it  the  burden  of  proving  justification  rests  upon  the 
intervening  power ; for  it  is  in  its  very  nature  an  infringe- 
ment of  the  independence  of  the  state  subjected  to  it,  and 
therefore  a violation  of  an  acknowledged  principle  of  Inter- 
national Law.  Let  us  first  distinguish  intervention  from 
other  forms  of  interference  which  might  possibly  be  con- 
founded with  it ; and,  having  done  this,  we  shall  then  be  in 

1 See  §§  128,  129. 


116 


RIGHTS  AND  OBLIGATIONS 


a position  to  discuss  whether  it  is  ever  justifiable,  and,  if  so, 
under  what  circumstances. 

The  essence  of  intervention  is  force,  or  the  threat  of  force, 
in  case  the  dictates  of  the  intervening  power  are  disregarded. 
It  is,  therefore,  clearly  differentiated  from  mere  advice 
tendered  by  a friendly  state  without  an)'  idea  of  compulsion, 
from  mediation  entered  upon  by  a third  power  at  the  request 
of  the  parties  to  the  dispute  but  without  any  promise  on 
their  part  to  accept  the  terms  proposed  or  any  intention  on 
its  part  to  force  them  to  do  so,  and  from  arbitration , which 
takes  place  when  the  contestants  agree  to  refer  the  dispute 
to  an  independent  tribunal  and  consent  beforehand  to  abide 
by  its  award,  though  it  possesses  no  power  to  compel  obedi- 
ence to  its  decisions.  There  can  be  no  intervention  without, 
on  the  one  hand,  the  presence  of  force,  naked  or  veiled, 
and,  on  the  other  hand,  the  absence  of  consent  on  the  part 
of  the  combatants.  There  have  been  instances  where  one 
party  to  the  dispute  has  asked  for  the  intervention  of  a third 
power;  but  if  both  parties  agree  in  such  a request  the  inter- 
ference ceases  to  be  intervention  and  becomes  mediation. 
Should  the  mediating  state  find  the  parties  unwilling  to 
accept  its  proposals  and  decide  to  compel  them  by  force  of 
arms,  its  action  would  then  lose  the  character  of  peaceful 
mediation  and  assume  that  of  warlike  intervention. 

§ 75. 

There  are  few  questions  in  the  whole  range  of  Inter- 
national Law  more  difficult  than  those  connected  with  the 
legality  of  intervention,  and  few  which  have 

General  principles  , , , ~ 

with  regard  to  been  treated  in  a more  unsatisfactory  manner 

by  the  bulk  of  the  writers  upon  the  subject. 
Some  have  confined  themselves  to  general  propositions ; 
while  others  have  devoted  much  time  and  labor  to  an 
examination  of  one  or  two  specific  instances  with  regard 
to  which  they  happened  to  hold  strong  opinions.  But  it 


CONNECTED  WITH  INDEPENDENCE. 


117 


is  difficult  to  find  anywhere  a wide  survey  of  historical 
instances  and  an  attempt  to  refer  them  to  principles,  laud- 
able or  blameworthy.  Yet  this  deficiency  in  the  treatment 
of  a great  subject  is  hardly  to  be  wondered  at.  We  can 
generally  deduce  the  rules  of  International  Law  from  the 
practice  of  states  ; but  in  this  case  it  is  impossible  to  do 
anything  of  the  kind.  Not  only  have  different  states  acted 
on  different  principles,  but  the  action  of  the  same  state  at 
one  time  has  been  irreconcilable  with  its  action  at  another. 
On  this  subject  history  speaks  with  a medley  of  discordant 
voices,  and  the  facts  of  international  intercourse  give  no 
clue  to  the  rules  of  International  Law.  We  might,  indeed, 
deem  that  the  search  for  rules  of  any  kind  was  hopeless, 
were  it  not  that  it  is  possible  to  deduce  certain  clear  and 
unmistakable  precepts  from  principles  admitted  on  all  sides. 
No  one  doubts  the  existence  of  the  right  of  independence, 
or  the  duty  of  self-preservation,  and  from  these  we  are 
able  by  a process  of  deduction  to  obtain  what  we  are  in 
search  of. 

§ 76. 

Every  state  is  bound  to  respect  the  independence  of  its 
neighbors  as  a fundamental  principle  of  International  Law; 
but  a regard  for  its  own  safety  is  still  more  Intervention 
fundamental,  and,  if  the  two  principles  clash, 
it  naturally  and  properly  acts  upon  the  latter.  Preservatlon- 
The  doctrine  that  self-preservation,  or  the  preservation  of 
what  is  more  precious  even  than  life,  overrides  ordinary  rules, 
is  in  no  way  peculiar  to  the  law  of  nations.  In  every 
civilized  state  homicide  is  a crime  of  the  greatest  magnitude  ; 
yet  a woman  who  slays  a man  in  defence  of  her  honor  is 
accounted  blameless.  It  is  universally  true  that  the  law 
of  the  land  protects  property ; yet  in  the  case  of  actual 
invasion  military  authorities  are  allowed  to  destroy  property, 
if  such  destruction  is  necessary  for  the  performance  of 
warlike  operations  against  an  enemy  in  the  field.  By  apply- 


118 


RIGHTS  AND  OBLIGATIONS 


ing  the  principle  which  underlies  these  instances  to  the  case 
of  intervention,  we  obtain  the  rule  that 

Intervention  to  ward  off  imminent  danger  to  the  intervening 
power  is  justifiable. 

But  we  must  note  carefully  that  the  danger  must  be  direct 
and  immediate,  not  contingent  and  remote,  and,  moreover,  it 
must  be  sufficiently  important  in  itself  to  justify  the  expen- 
diture of  blood  and  treasure  in  order  to  repel  it.  The 
mere  fear  that  something  done  by  a neighboring  state  to-day 
may  possibly  be  dangerous  to  us  in  the  future  if  that  state 
should  happen  to  become  hostile,  is  no  just  ground  of 
intervention.  If  it  were,  nations  might  always  be  at  war 
to-day  to  prevent  war  fifty  years  hence  ! Further,  the  cause 
which  justifies  intervention  must  be  important  enough  to 
justify  war.  Governments  constantly  submit  to  small  in- 
conveniences rather  than  resort  to  hostilities ; and  an  evil 
which  is  not  sufficiently  grave  to  warrant  a recourse  to 
the  terrible  arbitrament  of  battle  is  not  sufficiently  grave  to 
warrant  intervention. 

§ 77. 

We  have  seen  how  the  duty  of  self-preservation  may  over- 
ride the  duty  of  respect  for  a neighbor’s  freedom  of  action. 

It  must  now  be  pointed  out  that  this  is  not 
based  on  treaty-  the  only  exception  to  the  general  principle  of 

non-intervention.  States  constantly  enter  into 
agreements  which  modify  their  rights  and  duties  as  defined 
by  International  Law ; and  we  cannot  say  that  treaty  stipu- 
lations of  any  kind  are  forbidden  by  it,  though  it  is  easy  to 
find  agreements  which  are  condemned  by  enlightened  moral- 
ity. We  must,  therefore,  lay  down  the  further  rule  that 

Intervention  in  pursuance  of  a right  to  intervene  given  by 
treaty  is  tech7iically  justifiable. 

We  ought,  however,  to  add  that  treaties  which  give  such  a 
right  are  almost  always  unwise,  and  are  found  afterwards  to 


CONNECTED  WITH  INDEPENDENCE. 


119 


involve  the  signatory  powers  in  difficulties  from  which  they 
cannot  escape  without  loss  of  honor  or  dignity. 

§78. 

The  last  exception  to  the  ordinary  rule  is  based  upon  the 
principle  that  a state  may  lawfully  interpose  to  prevent 
illegal  action  on  the  part  of  other  states.  War 

. . . ~ , Intervention  based 

to  rebut  the  aggressions  ot  an  unscrupulous  on  protection  of 

...  . , 00  . . r n another  state 

neighbor  is  the  most  lust  and  necessary  ot  ail  against  illegal 

0 J J intervention. 

wars.  Intervention  to  prevent  an  unscrupulous 
neighbor  from  aggressive  interference  in  the  concerns  of  a 
third  power  is  the  most  unselfish  of  all  interventions.  If  a 
state  may  without  blame  defend  its  own  integrity  and  honor, 
it  may  defend  the  menaced  integrity  and  honor  of  a friend 
and  be  accounted  no  violator  of  the  law  of  nations.  We  ob- 
tain, therefore,  a third  and  last  rule,  which  is  that 

Intervention  to  prevent  or  terminate  the  illegal  intervention  of 
another  state  is  justifiable. 

But  we  must  distinguish  here  between  justification  as  between 
the  states  concerned  and  justification  as  between  the  inter- 
vening government  and  its  subjects.  The  former  may  be 
complete,  while  the  latter  is  wofully  lacking.  A power  which 
spent  its  strength  in  redressing  the  wrongs  of  other  powers, 
and  imposed  thereby  on  its  own  people  burdens  and  sacrifices 
out  of  all  proportion  to  the  good  it  effected  by  its  enterprises, 
would  neglect  its  first  duty  and  lay  itself  open  to  grave  blame 
in  spite  of  the  purity  of  its  intentions. 

§ 79. 

The  rules  we  have  just  laid  down  cover  every  case  in 
which  intervention  is  legal.  With  regard  to 

Interventions  on 
grounds  of 

...  , . T . humanity  and 

little  more  than  technical.  It  is  only  when  a interventions  to 

J stop  persecutions. 

state  intervenes  to  preserve  itself  from  some 

grave  and  imminent  danger  that  we  can  regard  its  action  as 


the  second  and  third  of  them,  the  justification  is 


120 


RIGHTS  AND  OBLIGATIONS 


beyond  the  scope  of  criticism.  In  the  opinion  of  some  writers 
interventions  undertaken  on  the  ground  of  humanity  and 
interventions  for  the  purpose  of  putting  a stop  to  religious 
persecutions  are  also  legal.  But  we  cannot  venture  to  bring 
them  within  the  ordinary  rules  of  International  Law.  It 
certainly  does  not  lay  down  that  cruelty  on  the  part  of  a 
government  renders  it  liable  to  be  deprived  of  its  freedom  of 
action,  nor  does  it  impose  upon  states  the  obligation  of  pre- 
venting either  ordinary  barbarit}r  on  the  part  of  their  neigh- 
bors, or  that  special  kind  of  inhumanity  which  takes  the 
form  of  religious  persecution.  At  the  same  time,  it  will  not 
condemn  such  interventions  if  they  are  undertaken  with  a 
single  eye  to  the  object  in  view  and  without  ulterior  consider- 
ations of  self-interest  and  ambition.  Should  the  cruelty  be 
so  long  continued  and  so  revolting  that  the  best  instincts  of 
human  nature  are  outraged  by  it,  and  should  an  opportunity 
arise  for  bringing  it  to  an  end  and  removing  its  cause  without 
adding  fuel  to  the  flame  of  the  contest,  there  is  nothing  in 
the  law  of  nations  which  will  condemn  as  a wrong-doer  the 
state  which  steps  forward  and  undertakes  the  necessary 
intervention.  Each  case  must  be  judged  on  its  own  merits. 
There  is  a great  difference  between  declaring  a national  act 
to  be  legal,  and  therefore  part  of  the  order  under  which  states 
have  consented  to  live,  and  allowing  it  to  be  morally  blame- 
less as  an  exception  to  ordinary  rules.  I have  no  right  to 
enter  my  neighbor’s  garden  without  his  consent;  but  if  I 
saw  a child  of  his  robbed  and  ill-treated  in  it  by  a tramp, 
I should  throw  ceremony  to  the  winds  and  rush  to  the  rescue 
without  waiting  to  ask  for  permission.  In  the  same  way,  a 
state  may,  in  a great  emergency,  set  aside  every-day  restraints; 
and  neither  in  its  case  nor  in  the  corresponding  case  of  the 
individual  will  blame  be  incurred.  But,  nevertheless,  the  or- 
dinary rule  is  good  for  ordinary  cases,  which,  after  all,  make 
up  at  least  ninety-nine  hundredths  of  life.  To  say  that  it  is 
no  rule  because  it  may  laudably  be  ignored  once  or  twice  in 
a generation,  is  to  overturn  order  in  an  attempt  to  exalt 


CONNECTED  WITH  INDEPENDENCE. 


121 


virtue.  An  intervention  to  put  a stop  to  barbarous  and 
abominable  cruelty  is  “ a high  act  of  policy  above  and  beyond 
the  domain  of  law.” 1 It  is  destitute  of  technical  legality, 
but  it  may  be  morally  right  and  even  praiseworthy  to  a high 
degree. 

We  are  now  in  a position  to  consider  the  grounds  of  inter- 
vention which  have  been  put  forward  from  time  to  time  by 
states.  The  history  of  wars  and  diplomatic  Grounds  of  inter- 
transactions shows  that  rulers  have  been  much  pardon various 
too  eager  to  meddle  with  the  concerns  of  their  occasions- 
neighbors,  and  ambitious  powers  have  often  seized  upon 
colorable  pretexts  for  controlling  the  destiny  of  weaker 
states.  We  will  attempt  to  classify  interventions  under 
various  heads,  giving  instances  of  each,  and  applying  the 
principles  we  have  adopted  to  a consideration  of  their 
legality. 

§ 81. 

Protection  from  imminent  danger  has  been  frequently  put 
forth  as  a justification  for  interference ; and,  if  the  plea  is 
good  in  fact,  it  is  undoubtedly  sound  in  law.  Protection  from 
Thus,  when  in  1804  the  British  Ministry  dis-  danger, 

covered  that  Spain  had  entered  into  arrangements  to  assist 
France,  then  at  war  with  England,  and  was  preparing  a 
naval  armament  in  the  harbor  of  Ferrol,  they  were  justified 
in  remonstrating  strongly  and  in  commencing  hostilities 
when  their  remonstrances  were  disregarded.2  Another  in- 
stance is  furnished  by  the  conduct  of  Austria  in  1818.  At 
the  close  of  the  armistice  granted  by  Napoleon  after  the 
battle  of  Bautzen,  it  joined  Russia  and  Prussia  against 
France,  the  reason  being  that  the  French  Emperor  had 
rejected  its  offers  of  mediation  on  the  basis  of  reasonable 
concessions  on  his  part,  and  had  brought  up  the  army  of  Italy 

1 Historicus,  Letters  on  Some  Questions  of  International  Law , I. 

2 Annual  Register  for  1805,  pp.  20-27. 


122 


RIGHTS  AND  OBLIGATIONS 


to  intimidate  it.1  It  had  to  choose  between  a continuance 
of  the  degrading  tutelage  it  had  been  under  since  1809,  and 
the  striking  of  a manly  blow  for  political  emancipation.  It 
chose  the  latter,  intervened  in  the  great  struggle,  and 
assisted  in  the  liberation  of  Europe  from  the  intolerable 
tyranny  of  Napoleon.  Its  national  independence  and  the 
integrity  of  its  territory  was  at  stake,  and  there  can  be  no 
doubt  that  its  conduct  was  in  accordance  with  the  strictest 
rules  of  International  Law  on  the  subject  of  intervention. 


§82. 


Protection  of 
another  state 
from  illegal 
intervention. 


Statesmen  have  sometimes  endeavored  to  justify  an  inter- 
vention on  the  ground  that  it  was  necessary  in  order'  to  ward 
off  the  illegal  intervention  of  another  power. 
The  best  example  of  this  in  recent  history  is 
the  British  expedition  to  Portugal  in  1826.2 
The  lawful  and  constitutional  Queen,  Donna  Maria,  was 
an  infant ; and  the  Regency  found  themselves  involved 
in  a struggle  with  her  uncle,  Don  Miguel,  who  had  put 
himself  at  the  head  of  the  absolutist  party,  and  was  op- 
posed to  the  constitutional  charter.  Ferdinand  VII.  of 
Spain  sympathized  with  Miguel,  and  allowed  Spanish  ter- 
ritory to  be  used  as  a secure  base  of  operations  for  the  expe- 
ditions of  the  Portuguese  pretender,  though  he  had  promised 
the  British  Government  not  to  interfere  in  the  struggle.3 
Mr.  Canning,  who  was  then  Foreign  Secretary  of  Great 
Britain,  was  careful  to  disclaim  any  intention  of  interfering 
in  the  internal  affairs  of  Portugal.  He  declared  that  when 
the  British  troops  landed  in  the  country  “ nothing  would  be 
done  by  them  to  enforce  the  establishment  of  the  constitu- 
tion, but  they  must  take  care  that  nothing  was  done  by  others 
to  prevent  it  from  being  fairly  carried  into  effect.”4  Other 


1 Fyffe,  Modern  Europe,  I.,  490-496. 

2 Wheaton,  History  of  the  Lav)  of  Nations,  Pt.  IV.,  § 24. 

3 Annual  Register  for  1826,  pp.  191-205,  310-344. 

4 Speech  in  House  of  Commons,  Dec.  11,  1826. 


CONNECTED  WITH  INDEPENDENCE. 


123 


reasons  for  the  intervention  were  put  forward,  but  the  main 
contention  that  it  was  entered  upon  to  prevent  the  illegal 
interference  of  Spain  was  a sufficient  technical  justification. 
It  was,  however,  little  more.  There  can  be  no  doubt  that 
Great  Britain  did  ardently  desire  the  success  of  the  constitu- 
tional cause  and  the  exclusion  of  Spanish  influence  from  the 
Portuguese  kingdom.  There  would  have  been  no  inter- 
vention had  Donna  Maria  been  an  absolute  ruler,  and  Don 
Miguel  a champion  of  freedom. 

§83. 

Numerous  treaties  of  guarantee  have  been  entered  into 
by  civilized  powers,  and  though  they  are  not  so  frequent  in 
modern  times  as  they  used  to  be  a century  or 

, . Treaty -right. 

two  centuries  ago,  they  are  quite  numerous 
enough  to  involve  states  in  many  difficulties  which  they 
would  have  escaped  had  they  preserved  their  freedom  of 
action.  Sometimes  intervention  is  asked  for  under  such 
treaties  from  a government  unwilling  to  give  it ; sometimes 
it  is  thrust,  in  accordance  with  their  provisions,  upon  com- 
munities unwilling  to  receive  it.  The  Republic  of  Columbia 
has  several  times  appealed  for  aid  to  the  United  States  to 
protect  the  railway  across  the  Isthmus  of  Panama  from 
the  attacks  of  insurgents,  and  has  based  its  requests  upon 
the  treaty  of  1846.  By  the  thirty-fifth  article  of  this 
treaty  the  United  States  guaranteed  the  “perfect  neutrality” 
of  the  isthmus,  and  Columbia’s  “ rights  of  sovereignty  and 
property”  over  it.  But  though  the  Government  of  Washing- 
ton has  sometimes  sent  a force  to  Panama,  it  has  always 
denied  that  it  was  under  any  obligation  to  Columbia  to 
defend  the  route  across  the  isthmus  against  local  insurrection, 
and  maintained  that  its  guarantee  refers  only  to  the  case  of 
attack  from  foreign  powers.1  We  need  not  go  back  very 
far  in  modern  history  to  discover  instances  in  Europe  where 
1 Treaties  of  the  United  States , pp.  208,  1275. 


124 


RIGHTS  AND  OBLIGATIONS 


states  have  been  glad  to  find  some  loophole  of  escape  from 
guarantees  unwisely  entered  into  not  long  before.  On  April 
15,  1856,  England,  France  and  Austria  guaranteed  “jointly 
and  severally  the  independence  and  integrity  of  the  Ottoman 
Empire.”1  When  the  great  war  between  Russia  and  Turkey 
broke  out  in  1877  the  late  Earl  Derby,  who  at  that  time 
held  the  seals  of  the  English  foreign  office,  contended  that 
Great  Britain  was  not  obliged  to  interfere  under  it  for  the 
protection  of  Turkey,  unless  France  and  Austria  resolved 
to  do  so  and  formally  called  upon  her  to  assist  them.  It 
would  be  easy  to  multiply  instances.  Indeed,  almost  the  only 
case  in  recent  times  where  prompt  and  efficacious  measures 
have  been  taken  in  pursuance  of  a guarantee  is  to  be  found 
in  the  conduct  of  Great  Britain  when  the  neutrality  of 
Belgium  was  threatened  in  1870  during  the  Franco-Prussian 
war.  She  immediately  concluded  two  conventions,  — one 
between  herself,  Belgium,  and  Prussia,  and  the  other  be- 
tween herself,  Belgium,  and  France.  The  first  stipulated 
that,  in  case  France  violated  Belgian  integrity  and  neutrality, 
Great  Britain  would  join  her  forces  with  those  of  Belgium 
and  Prussia  to  repel  the  attack.  The  second  contained 
exactly  similar  stipulations  mutatis  mutandis , to  meet  the 
case  of  an  attack  by  Prussia.2  These  vigorous  methods 
attained  their  object.  Belgium  was  left  unmolested  by  both 
the  belligerents  and  the  British  guarantee  of  her  neutrality 
contained  in  the  treaties  of  1881  and  1839  shown  to  be 
a living  reality.3  Obvious  considerations  of  policy  dictated 
the  action  of  the  English  Ministry  on  this  occasion.  It 
would  probably  have  been  what  it  was  had  no  previous 
guarantee  existed.  States  would  do  well  to  shun  such 
perilous  expedients,  which  do  but  tide  over  an  immediate 
difficulty  by  storing  up  trouble  for  future  time.  But,  never- 
theless, when  a treaty  of  guarantee  exists,  it  is  impossible  to 


1 Holland,  European  Concert  in  the  Eastern  Question , pp.  259,  260. 

2 Hertslet,  Map  of  Europe  by  Treaty , III.,  1886-1891. 

8 Wheaton,  History  of  Law  of  Nations,  Pt.  IV.,  § 26. 


CONNECTED  WITH  INDEPENDENCE. 


125 


say  that  the  power  which  acts  on  it  is  technically  a law- 
breaker. And  this  is  true  of  that  most  objectionable  class 
of  treaty  which_  guarantees  a particular  form  of  government 
in  a state,  or  the  succession  to  the  throne  to  a particular 
family,  and  thus  gives  to  the  guaranteeing  power  the  right 
to  interfere  in  the  internal  concerns  of  its  neighbor.  There 
is  the  right,  however  much  we  may  dislike  it.  We  may 
visit  with  the  severest  moral  condemnation  the  state  which 
insists  on  acting  upon  it ; but  we  cannot  brand  the  action 
as  illegal.  The  ethical  level  of  the  actor  may  be  that  of  the 
money-lender  who  ruins  a poor  man  by  exacting  the  last 
farthing  of  the  two  or  three  hundred  per  cent  due  to  him 
under  an  improvident  bond ; but,  like  the  money-lender,  he 
has  the  letter  of  the  law  on  his  side.  The  only  kind  of 
guarantees  not  open  to  objection  seem  to  be  those  entered 
into  by  the  collective  body  of  states,  or  by  the  leading  powers 
acting  on  their  behalf,  for  the  purpose  of  neutralizing  a 
territory  or  a water-way  under  the  public  law  of  the  civilized 
world. 

§84. 

Intervention  at  the  request  of  one  of  the  parties  to  a civil 
war  is  not  uncommon.  A recent  instance  occurred  in  1849, 
when,  at  the  request  of  the  Austrian  Government, 

■p.  , Request  of  one  of 

Kussia  came  to  its  assistance  in  its  struggle  the  parties  to  the 

stru^^lfi 

with  the  Hungarian  insurgents.  The  fact  that 
the  intervening  power  is  asked  to  interfere  by  one  of  the 
belligerents  is  often  put  forward  as  a sufficient  justification 
for  its  action,  and  there  are  not  wanting  writers  who  argue 
in  support  of  this  view.  Some  publicists  deny  the  legality  of 
intervention  at  the  request  of  rebels,  but  are  disposed  to  look 
more  favorably  upon  intervention  at  the  request  of  estab- 
lished governments.1  Others  hold  that  foreign  powers 
may  assist  the  party  which  appears  to  them  to  have  justice 
on  its  side.2  Both  views  are  examples  of  that  loose  mode  of 

1 e.g.  Woolsey,  International  Law , § 42. 

2 e.g.  Vattel,  Droit  des  Gens , II.,  § 50. 


126 


RIGHTS  AND  OBLIGATIONS 


thinking  which  mistakes  moral  preferences  for  legal  principles. 
Any  intervention  in  an  internal  struggle  is  an  attempt  to 
prevent  the  people  of  a state  from  settling  their  own  affairs 
in  their  own  way,  and,  as  such,  a gross  violation  of  national 
independence.  The  request  of  one  of  the  parties  cannot 
alter  the  quality  of  the  act,  and  render  legal  that  which 
without  it  would  be  contrary  to  the  fundamental  principles 
of  the  law.  It  makes  no  difference  whether  the  invitation 
comes  from  the  established  authorities  or  from  rebels.  In 
neither  case  can  an  incitement  to  do  wrong  render  the  act 
done  in  consequence  of  it  lawful  and  right. 

§ 85. 

From  the  middle  of  the  seventeenth  century  till  recent 
times,  it  was  an  undoubted  maxim  of  European  diplomacy 

that  what  was  called  the  Balance  of  Power  must 
the  Balance  of  be  preserved  at  all  risks.  The  courts  and  cabi- 

Power 

nets  of  the  Old  World  were  dominated  by  the 
idea  that  the  chief  states  of  Europe  ought  to  possess  such 
a nicely  proportioned  share  of  power  that  no  one  of  them 
should  be  able  to  greatly  outweigh  the  others  in  influence 
and  authority.  It  was  held  that  a sort  of  international 
equilibrium  of  forces  had  been  established,  and  that  any 
state  which  attempted  to  destroy  its  nice  adjustments  might 
be  attacked  by  others  whose  relative  importance  would  be 
diminished  if  it  were  permitted  to  carry  out  its  projects. 
For  a long  time  this  doctrine  was  accounted  axiomatic.  It 
had  only  to  be  stated  to  be  accepted.  To  preserve  the 
Balance  of  Power,  states  kept  up  standing  armies,1  entered 
into  wearisome  negotiations  and  waged  incessant  wars.  But 
of  late  years  it  has  fallen  into  disrepute,  and  those  who  still 

1 See  Preamble  to  the  old  British  Mutiny  Act:  “And  whereas  it  is 
adjudged  necessary  by  His  Majesty  and  this  present  Parliament  that  a Body 
of  Forces  should  be  continued  for  the  Safety  of  the  United  Kingdom,  the 
Defence  of  the  Possessions  of  His  Majesty’s  Crown,  and  the  Preservation  of 
the  Balance  of  Power  in  Europe.” 


CONNECTED  WITH  INDEPENDENCE. 


127 


maintain  it  set  it  forth  in  a greatly  modified  form.  They 
are  content  to  argue  that  civilized  states  have  duties  to 
perform  to  the  great  society  of  which  they  are  all  members, 
and  that  they  should  act  in  concert  against  any  aggressive 
member  of  it  whose  unsocial  conduct  endangers  the  welfare 
of  the  whole.  It  is  possible  to  accept  this  doctrine  and  yet 
to  hold  that  the  theory  of  a Balance  of  Power  is  untenable. 
Indeed,  its  most  complete  condemnation  is  to  be  found  in 
the  history  of  the  interventions  undertaken  to  uphold  it. 
What,  for  instance,  could  be  a greater  reductio  ad  absurdum 
of  the  theor}r  than  the  results  of  the  intervention  of  the 
Grand  Alliance  at  the  beginning  of  the  eighteenth  century  in 
order  to  prevent  the  union  of  the  crowns  of  France  and 
Spain?  It  was  thought  that  this  undesirable  result  would 
take  place  if  Philip  V.,  a grandson  of  Louis  XIV.  of  France, 
were  suffered  to  remain  upon  the  Spanish  throne.  Between 
him  and  the  French  crown,  if  the  aged  Louis  XIV.  should 
die,  there  was  for  a time  only  the  life  of  his  elder  brother 
Louis,  Duke  of  Burgundy,  and  afterwards  in  addition  the 
life  of  the  Duke’s  infant  son,  who  in  1715  became  Louis  XV. 
of  France.  Both  these  lives  were  very  bad,  and  for  several 
years  nothing  seemed  more  probable  than  the  speedy  acces- 
sion of  Philip  to  the  throne  of  France.  The  allies,  therefore, 
determined  to  drive  him  from  Spain  and  set  up  at  Madrid  in 
his  stead  the  Archduke  Charles,  second  son  of  the  Emperor 
Leopold  I.  Joseph,  the  elder  brother,  was  young  and  healthy, 
and  likely  to  be  the  progenitor  of  a vigorous  race.  He  would 
succeed  his  father  on  the  imperial  throne,  but  it  was  thought 
there  could  be  no  danger  of  his  death  opening  the  succession 
to  Charles.  Yet  he  died  childless  in  1711,  after  having 
reigned  in  Vienna  for  six  years,  and  was  succeeded  by  his 
brother ; while  the  sickly  infant  who  afterwards  became 
Louis  XV.  lived  to  old  age.  The  attempt  of  the  allies  to 
deprive  Philip  of  the  Spanish  crown  failed.  Had  it  succeeded, 
they  would  have  brought  about  the  very  disturbance  of  the 
European  equilibrium  which  they  took  up  arms  to  avoid. 


128 


RIGHTS  AND  OBLIGATIONS 


The  Imperial  and  Spanish  crowns  would  have  been  united 
on  one  head,  a consummation  as  full  of  danger  to  the  Balance 
of  Power  as  the  union  of  France  and  Spain  under  one  king. 
If  the  Allies  had  been  content  to  wait  for  the  anticipated 
danger  to  become  actual  before  they  took  up  arms  to  avert 
it,  they  need  not  have  gone  to  war  at  all.1 

A political  system  which  tends  to  stereotype  the  existing 
order  of  things  in  international  affairs  is  fatal  to  progress. 
Yet  underlying  the  theory  of  the  Balance  of  Power  was 
always  the  assumption  that  the  division  of  territory  and 
authority  among  the  chief  states  of  Europe  at  any  given 
time  was  the  right  and  proper  division,  and  must  be  main- 
tained at  all  costs.  In  actual  fact,  the  order  which  it  was 
sought  to  preserve  was  constantly  changing.  At  one  period 
the  state  of  possession  established  by  the  Peace  of  Vienna  of 
1815  was  regarded  as  sacred,  at  another  the  appeal  was  to 
the  Peace  of  Utrecht  of  1713,  at  a third  to  that  of  West- 
phalia of  1648.  The  world  moved  in  spite  of  the  efforts  of 
rulers  to  keep  it  stationary,  and  they  had  to  adjust  their 
theories  to  its  changes.  But  in  doing  so  they  found  in  the 
idea  of  a Balance  of  Power  a cloak  for  ambitious  schemes. 
If  one  state  desired  to  pick  a quarrel  with  another,  it  was 
easy  to  allege  that  some  action  on  the  part  of  the  latter 
threatened  the  European  equilibrium.  Under  cover  of  such 
an  accusation  demands  for  concessions  of  all  kinds  could  be 
made.  The  last  development  of  the  balance  theory  in  this 
direction  was  due  to  the  ingenuity  of  the  Emperor  Napoleon 
III.  He  put  forth  the  doctrine  that  whenever  another  state 
was  greatly  aggrandized,  France  must  have  territorial  com- 
pensation, in  order  that  the  relative  power  of  the  two  nations 
might  remain  constant.  He  obtained  the  cession  of  Savoy 
and  Nice  in  1860  as  compensation  for  the  creation  of  the 
Kingdom  of  Italy ; but  he  failed  entirely  in  his  efforts  to 
obtain  compensation  for  the  unification  of  North  Germany 
in  1866.  Prince  Bismarck  alleged  that  such  a spirit  of 

1 Wheaton,  History  of  the  Law  of  Nations , Pt.  1,  § 2. 


CONNECTED  WITH  INDEPENDENCE. 


129 


German  patriotism  had  been  aroused  by  the  victories  of 
Prussia,  that  it  was  impossible  for  him  to  cede  a yard  of 
German  territory  to  France.  In  saying  this,  he  incidentally 
laid  bare  the  main  defect  of  the  theory  of  a Balance  of 
Power.  It  takes  no  account  of  any  other  motives  of  state 
policy  than  the  personal  aggrandizement  of  rulers  and  the 
territorial  extension  of  states.  It  distributes  provinces  and 
rounds  off  the  boundaries  of  kingdoms  without  regard  to 
the  wishes  of  the  populations  and  their  affinities  of  race, 
religion,  and  sentiment.  It  represses  popular  movements 
when  they  interfere  with  its  calculations.  Italian  unity  and 
German  unity  have  been  achieved  in  spite  of  it,  and  it  will 
become  more  and  more  discredited  as  the  nations  of  Europe 
advance  in  self-government.  There  is  but  one  good  thing 
to  be  said  for  it.  It  did  sometimes  act  as  a restraint  upon  un- 
scrupulous rulers,  as  when  in  1668,  the  Triple  Alliance  of 
England,  Sweden,  and  Holland  without  firing  a shot,  caused 
Louis  XIY.  to  renounce  for  a time  his  designs  upon  the 
Spanish  Netherlands.  But  even  in  this  connection  the  good 
effects  of  the  theory  are  rather  accidental  than  essential. 
If  the  would-be  plunderers  can  but  agree  beforehand  on  a 
division  of  the  spoil,  their  victim  will  not  be  saved  by  any 
regard  for  a Balance  of  Power  which  remains  unaffected  by 
the  transaction.  This  statement  finds  ample  proof  in  the 
history  of  the  three  partitions  of  Poland  between  Austria, 
Prussia  and  Russia.  Intervention  on  behalf  of  a system  so 
full  of  evil  finds  no  warrant  in  International  Law.  The 
independence  of  states  is  not  to  be  violated  on  the  ground 
of  possible  danger  to  some  imaginary  equilibrium  of  political 
forces.  If  the  proceedings  of  one  nation  directly  and  seri- 
ously menace  the  safety  of  another,  the  threatened  power 
has  ample  warrant  for  intervention  in  the  principle  of  self- 
preservation.  The  law  of  nations  allows  it  to  take  extreme 
measures  on  behalf  of  its  integrity  or  its  honor,  but  it  gives 
no  sanction  to  a violation  of  fundamental  principles  for  the 
sake  of  a pernicious  theory  of  artificial  checks  and  balances. 


130 


RIGHTS  AND  OBLIGATIONS 


The  people  of  the  United  States  have  never  been  brought 
face  to  face  with  an  international  system  based  upon  the 
doctrine  of  a Balance  of  Power.  The  political  circumstances 
of  the  New  World  have  happily  prevented  the  growth  of 
such  a system  on  the  American  continent,  and  its  importation 
from  Europe  has  been  avoided,  owing  to  the  wise  policy  of 
successive  administrations  from  that  of  President  Monroe 
onwards. 


86. 


Interventions  undertaken  to  put  down  or  to  uphold  revo- 
lution are  open  to  much  the  same  objections  as  those  we  have 


urged  against  attempts  to  maintain  a Balance 
of  Power  by  force  of  arms.  They  are  attacks 


Interference  with 
revolutions. 


upon  the  rights  of  states  to  manage  their  internal  affairs  in 
their  own  way.  A successful  revolution  in  favor  of  a 
republic  is  doubtless  unwelcome  to  monarchical  states,  and 
a successful  revolution  in  favor  of  monarchy  is  equally  un- 
welcome to  republican  states.  But  from  the  point  of  view 
of  International  Law  it  is  immaterial  whether  a revolution 
establishes  one  form  of  government  or  another,  whether  it 
restricts  or  widens  liberty,  whether  it  is  in  favor  of  or 
against  popular  institutions.  The  one  thing  other  states 
have  to  consider  is  whether  the  new  government  created  by 
the  revolution  commands  the  obedience  of  the  people  of  the 
state,  and  is  able  to  speak  with  authority  on  their  behalf  in 
its  dealings  with  foreign  powers.  If  it  does,  they  must  sooner 
or  later  recognize  it.  If  it  does  not,  they  can  ignore  it.  But 
in  no  case  have  they  a right  to  interfere  with  it,  always  sup- 
posing that  the  revolutionists  confine  their  activity  to  their 
own  country  and  make  no  attempt  upon  the  institutions  of 
neighboring  states.  If  they  indulge  in  propagandist  attacks 
upon  other  powers,  they  may  with  justice  be  restrained  on 
grounds  of  self-preservation.  The  proceedings  of  the  Holy 
Alliance  afford  the  best  example  of  illegal  interventions  en- 
tered upon  in  order  to  put  down  revolution.  The  Alliance 


CONNECTED  WITH  INDEPENDENCE. 


131 


had  its  origin  in  an  agreement  entered  into  at  Paris  in  Sep- 
tember, 1815,  between  the  sovereigns  of  Russia,  Austria  and 
Prussia,  to  rule  justly  and  mercifully,  to  regard  one  another 
as  brothers,  to  treat  their  subjects  as  children,  and  to  apply 
to  political  and  international  affairs  the  precepts  of  the  Chris- 
tian religion.1  These  exalted  sentiments  depended  for  their 
political  utility  upon  the  manner  of  their  application ; and  it 
soon  became  apparent  that  the  Holy  Alliance  existed  for  the 
purpose  of  putting  down  all  movements  in  favor  of  liberty 
among  the  continental  states,  on  the  ground  that  there 
existed  a vast  conspiracy  against  established  power,  and  that 
the  public  law  of  Europe  forbade  reforms  carried  out  by 
revolt  and  revolution.  As  a consequence  of  the  Congresses  of 
Troppau  and  Laybach  of  1820  and  1821,  Austrian  troops  put 
down  popular  movements  in  favour  of  political  liberty  in 
Naples,  Sardinia,  and  other  states ; and  in  1823,  after  the 
Congress  of  Verona,  held  in  the  previous  year,  French  troops 
invaded  Spain  and  restored  Ferdinand  VII.  to  the  plenitude 
of  his  absolute  power.2  Great  Britain  refused  to  concur  in 
any  of  these  measures  and  “ disclaimed  any  general  right 
of  interference  in  the  internal  concerns  of  independent 
nations.” 3 She  maintained  that  such  intervention  was  jus- 
tified only  when  the  security  and  essential  interests  of  the 
intervening  state  were  threatened.  The  stand  she  took  on 
behalf  of  sound  principles  threw  her  into  open  antagonism 
to  the  policy  of  the  Holy  Alliance,  and  brought  about 
the  famous  agreement  between  the  cabinets  of  London  and 
Washington,  which  caused  President  Monroe  to  embody  in  his 
message  of  Dec.  2,  1823,  the  assertion  that  the  United  States 
would  regard  any  attempt  on  the  part  of  the  Alliance  to 
extend  its  system  to  the  American  continent  as  dangerous  to 
their  peace  and  safety.  This  declaration  disposed  of  a plan 
then  in  contemplation  for  giving  aid  to  Spain  in  the  recon- 


1 Hertslet,  Map  of  Europe  by  Treaty,  I.,  318. 

2 Wheaton,  History  of  the  Law  of  Nations,  Pt.  IV.,  §§  22,  23. 

3 Canning,  Despatch  to  the  French  Charge  d' Affaires,  Jan.  10, 1823. 


132 


EIGHTS  AND  OBLIGATIONS 


quest  of  her  revolted  transatlantic  colonies,  and  joined  with 
the  vigorous  measures  of  Mr.  Canning,  then  Foreign  Secretary 
of  Great  Britain,  inflicted  a fatal  blow  upon  the  prestige  of 
the  Holy  Alliance. 

§ 87. 

Humanitarian  interventions  and  interventions  for  the  pur- 
pose of  putting  an  end  to  religious  persecution  may  be  classi- 
fied together ; for  the  cruelties  due  to  intolerance 

Humanity.  ° 

come  under  the  general  head  of  proceedings 
repugnant  to  humanity.  It  is  easy  to  see  that  the  right  of  a 
state  to  work  out  its  own  destiny  in  its  own  way  would  no 
longer  exist,  if  International  Law  gave  to  other  states  a gen- 
eral right  of  interference  whenever  they  were  horrified  at 
cruelties  committed  in  the  course  of  a war  or  an  internal 
struggle.  All  sorts  of  ambitious  projects  would  be  able  to 
shelter  themselves  behind  an  alleged  feeling  of  humanity ; 
for  unfortunately  there  are  few,  if  any,  civil  wars  in  which  a 
greater  or  less  amount  of  cruelty  is  not  resorted  to.  But,  as 
we  have  already  discovered,1  interventions  on  the  ground  of 
humanity  have  under  very  exceptional  circumstances  a 
moral,  though  not  a legal,  justification.  It  is  generally  held 
that  the  interference  of  Great  Britain,  France  and  Russia  on 
behalf  of  the  Greeks  in  1827  and  the  following  years  is  a 
case  in  point.2  The  contest  between  them  and  their  Turkish  * 
oppressors  had  gone  on  for  years,  and  had  been  marked 
throughout  by  the  most  horrible  barbarities.  It  seemed  as  if 
it  would  end  in  the  extermination  of  the  whole  Greek  race. 
The  intervention  of  the  three  powers  preserved  a people  to 
whom  civilization  owed  so  much,  and  laid  the  foundation  of 
a new  order  in  Southeastern  Europe,  which,  with  all  its 
defects,  is  infinitely  preferable  to  the  chaos  of  weltering  bar- 
barism that  immediately  preceded  it.  Again,  when  in  1860 
the  Great  Powers  intervened  to  put  a stop  to  the  persecution 
and  massacre  of  Christians  in  the  district  of  Mount  Lebanon, 

1 See  § 74.  2 Wheaton,  History  of  the  Law  of  Nations , Pt.  IV.,  § 28. 


CONNECTED  WITH  INDEPENDENCE. 


133 


their  proceedings  were  worthy  of  commendation,  though  they 
could  not  be  brought  within  the  strict  letter  of  the  law ; and 
the  same  may  probably  be  said  of  the  indirect  intervention 
whereby  in  1878  the  signatory  powers  of  the  Treaty  of  Berlin 
recognized  the  independence  of  Montenegro,  Roumania  and 
Servia,  on  condition  that  no  person  in  those  states  should  be 
under  legal  disability  on  account  of  his  religious  belief,  or 
suffer  molestation  in  the  public  worship  prescribed  by  his 
creed.1 

§88. 

We  have  now  gone  through  the  various  classes  into  which 
interventions  may  be  divided.  For  the  sake  of  clearness,  we 
have  treated  each  separate  case  as  if  it  came 

i ...  p.i  it  ii  Complication 

under  one  or  another  oi  these  heads  and  under  of  most  cases  of 
that  alone.  But  in  actual  life  matters  are  not 
so  simple.  The  same  intervention  often  possesses  a variety 
of  aspects,  and  attempts  are  made  to  justify  it  on  several 
grounds.  The  formation  of  a judgment  upon  it  is  difficult 
in  proportion  to  its  complication.  Few  international  pro- 
ceedings of  recent  years  have  been  more  bitterly  attacked 
and  more  strongly  defended  than  the  present  British  inter- 
vention in  Egypt,  which  has  been  carried  on  with  armed 
force  ever  since  1882.  It  involves  for  Great  Britain  ques- 
tions of  self-interest  with  regard  to  the  Suez  Canal,  questions 
of  national  honor  with  regard  to  the  promises  made  to 
Tewfik  Pasha  in  1879,  questions  of  good  government  with 
regard  to  the  suppression  of  the  Arabist  movement  and  the 
reform  of  the  administration,  questions  of  finance  with  regard 
to  the  Egyptian  debt,  and  questions  of  the  rights  of  other 
states  in  connection  with  the  dual  control  which  was  shared 
with  France,  and  the  suspension  of  the  Law  of  Liquidation 
which  was  signed  by  no  less  than  fourteen  powers.2  It  will 
not  be  necessary  to  enter  into  the  controversies  which  this 

1 Holland,  European  Concert  in  the  Eastern  Question,  pp.  293-301. 

2 Ibid.,  pp.  89-205. 


134 


RIGHTS  AND  OBLIGATIONS 


intervention  has  aroused.  We  have  referred  to  it  in  order  to 
show  how  complicated  such  a proceeding  can  be,  and  how  at 
every  turn  it  involves  disputes  on  matters  of  fact  as  well  as 
legal  principles.  Moreover,  several  states  may  be  concerned 
in  one  and  the  same  intervention,  and  they  may  be  actuated 
by  different  motives  and  put  forth  different  justifications. 
Every  case  must  be  judged  on  its  own  merits  in  the  light  of 
the  principles  we  have  already  laid  down.  We  may  add  to 
them  a few  others,  which,  though  not  rules  of  International 
Law,  will  be  found  useful  guides  to  correct  conclusions. 
From  what  has  been  already  said  it  follows,  as  a corollary, 
that  interventions  in  the  internal  affairs  of  states  are  greater 
infringements  of  their  independence  than  interference  with 
their  external  action,  which  must,  from  the  nature  of  the  case, 
*be  concerned  with  other  powers.  Such  interventions,  there- 
fore, should  be  watched  with  the  utmost  jealousy,  and  require 
the  strongest  reasons  in  order  to  justify  them.  Further, 
interventions  carried  on  by  tbe  Great  Powers  as  the  repre- 
sentatives of  European  civilization,  or  by  some  state  or  states 
acting  as  their  agent,  are  more  likely  to  be  just  and  beneficial 
than  interventions  carried  on  by  one  power  only.  But  his- 
tory seems  to  show  that  when  two  or  three  states  combine  in 
a temporary  alliance  for  the  purpose  of  regulating  the  affairs 
of  some  neighbor,  they  not  only  possess  none  of  the  moral 
authority  attaching  to  the  proceedings  of  the  Great  Powers, 
but  are  exceedingly  likely  to  quarrel  among  themselves. 
England  and  Spain,  for  instance,  soon  withdrew  from  the 
unjustifiable  intervention  in  Mexico,  which  they  had  under- 
taken in  1861  in  conjunction  with  France,  for  the  avowed 
purpose  of  obtaining  from  the  Mexican  Government  payment 
of  its  debts  to  their  subjects  and  better  protection  for  for- 
eigners resident  in  Mexico.  In  1862  France  began  to  give 
aid  to  the  Imperialists,  contrary  to  the  terms  of  the  conven- 
tion between  tbe  intervening  powers.  The  other  two  parties 
to  the  intervention,  finding  themselves  in  a false  position, 
declined  to  proceed,  and  France,  left  to  herself,  placed  the 


Connected  with  independence. 


136 


Archduke  Maximilian  of  Austria  upon  a precarious  throne, 
which  he  lost,  together  ivith  his  life,  in  1867. 1 The  case 
of  the  intervention  of  the  German  Confederation  in  the 
Schleswig-Holstein  question  in  1864  is  a more  conspicuous 
warning  still ; for  it  ended  in  the  war  of  1866  between 
Austria  and  Prussia,  the  two  chief  intervening  powers. 

§89. 

So  prone  are  powerful  states  to  interfere  in  the  affairs  of 
others,  and  so  great  are  the  evils  of  interference,  that  a doc- 
trine of  absolute  non-intervention  has  been  put  The  doctrine  of 
forth  as  a protest  against  incessant  meddling.  non‘lutervention- 
If  this  doctrine  means  that  a state  should  do  nothing  but  mind 
its  own  concerns  and  never  take  an  interest  in  the  affairs  of 
other  states,  it  is  fatal  to  the-  idea  of  a family  of  nations.  If, 
on  the  other  hand,  it  means  that  a state  should  take  an  inter-' 
est  in  international  affairs,  and  express  approval  or  disap- 
proval of  the  conduct  of  its  neighbors,  but  never  go  beyond 
moral  suasion  in  its  interference,  it  is  foolish.  To  scatter 
abroad  protests  and  reproaches,  and  yet  to  let  it  be  under- 
stood that  they  will  never  be  backed  by  force  of  arms,  is  the 
surest  way  to  get  them  treated  with  angry  contempt.  Neither 
selfish  isolation  nor  undignified  remonstrance  is  the  proper 
attitude  for  honorable  and  self-respecting  states.  They 
should  intervene  very  sparingly,  and  only  on  the  clearest 
grounds  of  justice  and  necessity  ; but  when  they  do  intervene, 
they  should  make  it  clear  to  all  concerned  that  their  voice 
must  be  attended  to  and  their  wishes  carried  out. 

1 Wheaton,  International  Law  (Dana’s  ed.),note  41 ; Calvo,  Droit  Inter- 
national, §§  118-125. 


CHAPTER  II. 


EIGHTS  AND  OBLIGATIONS  CONNECTED  WITH  PBOPERTY. 


§90. 

International  Law  regards  states  as  political  units  pos- 
sessed of  proprietary  rights  over  definite  portions  of  the  earth’s 
States  are  political  surface-  So  entirely  is  its  conception  of  a state 
hoidin“both  °f  hound  up  with  the  notion  of  territorial  posses- 
tCTritorial  pos  n°n  sion  that  it  would  be  impossible  for  a nomadic 
tribe,  even  if  highly  organized  and  civilized,  to 
come  under  its  provisions.  The  whole  Law  of  Jurisdiction, 
much  of  the  Law  of  Diplomacy,  and  many  of  the  rules  that 
govern  war  and  neutrality,  imply  that  the  communities  sub- 
ject to  them  have  sovereign  rights  over  territory.  But  a 
state  may  hold  non-territorial  as  well  as  territorial  pos- 
sessions ; and  it  will  be  well  to  deal  with  them  at  once,  in 
order  that  we  may  dismiss  them  from  further  consideration, 
and  go  on  to  consider  the  important  questions  connected  with 
national  ownership  of  land  and  water.  The  non-territorial 
possessions  of  a state  are  its  buildings  and  chattels.  Every 
civilized  and  independent  political  community  possesses  in 
greater  or  less  abundance  such  things  as  palaces,  museums, 
ships,  forts,  arsenals,  arms,  ammunition,  pictures  and  jewels. 
They  belong  to  it  in  its  corporate  capacity ; and  most  ques- 
tions which  arise  with  regard  to  the  right  of  ownership  over 
them,  or  the  right  to  use  and  enjoy  them,  are  settled  by 
Municipal  Law.  We  refer,  for  instance,  to  the  law  of  the 
land,  and  not  to  International  Law,  when  we  want  to  know 
when  we  may  visit  a national  art  gallery,  or  what  compulsory 

136 


RIGHTS  AND  OBLIGATIONS. 


137 


powers  the  Government  has  to  take  the  land  of  private  owners 
for  the  erection  of  forts  and  magazines  upon  it.  It  is  only 
when  war  breaks  out  between  two  states,  and  such  possessions 
as  we  are  considering  become  subject  to  belligerent  capture, 
that  International  Law  steps  in  to  settle  the  nature  and  limits 
of  proprietary  rights  over  them.  The  laws  of  war  decide  the 
extent  of  their  liability  to  hostile  seizure,  and  the  kind  and 
degree  of  control  that  can  be  exercised  over  them  when  seized. 
We  shall  examine  these  questions  when  we  come  to  deal  with 
belligerent  rights.  Meanwhile  we  may  mention  here  that 
vessels  belonging  to  the  state  — public  vessels  as  they  are 
called  to  distinguish  them  from  ships  which  are  the  property 
of  private  individuals  — need  not  necessarily  be  adapted  for 
warlike  purposes.  If  they  are  owned  by  the  state,  manned 
by  individuals  in  its  service,  and  navigated  under  the  com- 
mand of  its  officers,  they  are  state  property.  Even  if  hired 
by  the  state,  they  are  public  ships  while  the  hiring  lasts, 
provided  that  they  are  entirely  given  up  for  the  time  being 
to  the  service  of  the  government  and  are  under  the  control  of 
its  officers.  Sometimes  the  word  of  the  commander  has  been 
held  to  be  sufficient  evidence  of  state  ownership. 

§91. 

We  will  now  proceed  to  a consideration  of  the  rules  of  In- 
ternational Law  with  respect  to  the  important  group  of  sub- 
jects connected  with  a state’s  territorial  posses- 

• sit  x Extent  of  a state’s 

sions.  W e will  begin  by  endeavoring  to  answer  territorial 

. ° J ° possessions. 

the  question,  Of  what  does  a state’s  territory 
consist?  It  consists,  first,  of  the  land  and  water  within  that 
portion  of  the  earth’s  surface  which  the  state  claims  by  legal 
title.  All  rivers  and  lakes  which  are  entirely  within  its  land 
boundaries  are  as  much  its  territory  as  the  soil  they  water. 
And  if  a river  flows  through  several  states,  each  possesses  in 
full  ownership  that  portion  of  the  course  which  passes  through 
its  territory.  But  if  one  state  holds  the  land  on  one  bank  of 


138 


RIGHTS  AND  OBLIGATIONS 


a river  and  another  state  possesses  the  opposite  bank,  the 
boundary  line  between  them  is  drawn  down  the  middle  of  the 
navigable  channel,  and  includes  the  islands  on  either  side.1 
The  same  rule  holds  good  of  frontier  lakes,  such  as  Lake 
Ontario,  whose  northern  shore  is  Canadian  territory  while  its 
southern  coast  belongs  to  the  United  States.  In  all  these 
cases  it  will  be  noticed  that  water  is  held  to  be  appurtenant 
to  land,  not  land  to  water.  The  rules  concerning  them  are 
taken  with  scarcely  any  alteration  from  the  Jus  Gentium,  and 
are  part  of  that  heritage  of  Roman  Law  with  which  Grotius 
and  his  fellow-workers  endowed  the  international  code. 

Secondly,  a state’s  territory  includes  the  sea  within  a three- 
mile  limit  of  its  shores.  Along  a stretch  of  open  coast-line 
the  dominion  of  the  territorial  power  extends  seawards  to  a 
distance  of  three  miles,  measured  from  low-water  mark.  The 
rule  of  the  marine  league  was  introduced  at  the  beginning  of 
the  last  century  as  a practical  application  of  the  principle  laid 
down  by  Bynkershoek2  and  others,  that  a state’s  dominion 
over  the  sea  should  be  limited  to  that  portion  of  it  which  she 
can  control  from  the  land  by  means  of  her  artillery,  this  being 
obviousl3r  all  that  can  be  needed  to  provide  for  her  own 
safety.  Her  sovereign  rights  were  to  extend  quousque  tor- 
menta  exploduntur.  And  as  at  that  time  the  furthest  range 
of  cannon  was  about  three  miles,  the  accepted  maxim,  Terrce 
dominium  jinitur  ubi  finitur  armorum  vis , seemed  to  dictate 
the  marine  league  as  the  appropriate  distance.  Opposing 
views  gradually  died  out,  and  there  can  be  no  doubt  that, 
whatever  difficulties  may  still  linger  as  to  bays  and  indenta- 
tions, the  rule  we  are  discussing  rests  upon  the  solid  basis  of 
general  consent.  It  has  been  adopted  not  only  in  the  domes- 
tic legislation  of  maritime  states ; but  also  in  great  inter- 
national documents,  like  the  North  Sea  Fisheries  Convention 
of  1882,  which  defined  territorial  waters  as  those  which  came 

1 Justinian,  Institutes,  II.,  i.,  22,  and  Digest,  XLL,  i.,  29;  Wharton, 
International  Law  of  the  United  States,  I.,  97. 

2 De  Dominio  Maris , Cap.  II. 


CONNECTED  WITH  PROPERTY. 


139 


within  three  miles,  measured  from  low-water  mark  along  the 
coast  of  each  of  the  signatory  powers.1  A few  attempts  have 
been  made  in  recent  times  to  extend  the  limit  in  order  to 
keep  pace  with  the  increased  range  of  modern  artillery.  For 
instance,  in  1863  Mr.  Graham,  the  United  States  Consul  at 
Cape  Town,  demanded  the  release  of  the  Federal  merchant 
vessel,  the  Sea  Bride , which  had  been  captured  by  the  Con- 
federate cruiser  Alabama  within  four  miles  of  the  shore,  but 
outside  the  three-mile  limit.  He  based  his  demand  upon  the 
doctrine  that  since  the  invention  of  rifled  cannon  territorial 
waters  extended  to  at  least  six  miles.  The  British  Governor 
of  Cape  Colony  declined  to  interfere,  on  the  ground  that  the 
rule  of  the  marine  league  held  good.2  Mr.  Graham’s  action 
was  not  seriously  backed  by  his  Government;  and  in  1875 
the  United  States  joined  Great  Britain  in  strenuously  resist- 
ing the  repeated  claim  of  Spain  to  a six -mile  zone  off  the 
coasts  of  Cuba,  a claim  denied  again  in  1880.3  It  may  be 
taken  for  granted  that,  in  spite  of  a few  tentative  efforts  at 
alteration,4  the  rule  of  the  three-mile  limit  is  part  and  parcel 
of  modern  International  Law.  The  Institute  of  International 
Law  is,  however,  showing  a tendency  to  reopen  the  question. 
A report  upon  the  subject  was  presented  at  the  Geneva 
session  of  1892 ; 5 but  the  full  discussion  of  the  matter 
was  deferred  to  a future  occasion.  A revised  report  was 
prepared  by  Mr.  T.  Barclay  for  the  session  held  at  Paris  in 
March,  1894.6  It  drew  a sharp  distinction  between  terri- 
torial waters  and  waters  over  which  a neutral  state  should  be 
allowed  to  exercise  such  authority  as  is  necessary  for  the 
enforcement  of  its  neutrality.  On  the  ground  that  the 
marine  league  is  insufficient  to  protect  coast  fisheries,  it 

1 Hertslet,  Treaties,  XV.,  795. 

2 British  State  Papers,  North  America,  United  States  (1864),  LXII.,  19-29. 

3 Wharton,  International  Law  of  the  United  States,  §§  32,  327. 

4 Bluntsclili,  Droit  International  Codifie,  § 302  ; Phillimore,  Commentaries 
upon  International  Law,  Pt.  III.,  Ch.  viii. 

5 Annuaire  dr  VInstitut  de  Droit  International,  1892-1894,  pp.  104-154. 

6 Troisieme  Commission,  Rapport  par  M.  Barclay. 


140 


EIGHTS  AND  OBLIGATIONS 


suggested  the  extension  of  the  territorial  zone  to  six  miles ; 
and  it  gave  to  each  neutral  state  the  power  of  declaring  to 
belligerents  the  number  of  marine  miles  it  deems  needful  for 
the  effective  guarantee  of  its  neutrality,  provided  that  they 
do  not  exceed  the  range  of  cannon  mounted  on  the  shore. 
The  maritime  powers  were  recommended  to  meet  in  Congress 
in  order  to  adopt  these  and  other  rules.  The  chief  proposals 
of  the  Report  were  accepted  by  the  Institute  ; but  it  is  doubt- 
ful whether  the  suggested  Congress  will  ever  be  held. 1 

In  the  third  place,  a state  is  held  to  possess,  in  addition  to 
the  marine  league,  narrow  bays  and  estuaries  that  indent  its 
coast,  and  narrow  straits  both  of  whose  shores  are  in  its  terri- 
tory. The  case  of  such  straits  is  ruled  by  a simple  deduction 
from  the  principles  already  laid  down.  If  the  passage  is  less 
than  six  miles  across,  it  is  wholly  territorial  water,  because  a 
marine  league  measured  from  either  shore  covers  the  whole 
expanse.  If  it  is  more  than  six  miles  across,  a league  on 
either  side  belongs  to  the  territorial  power  and  the  mid- 
channel is  part  of  the  open  sea,  which  belongs  to  no  state  but 
is  common  to  all  for  use  and  passage.  With  regard  to  bays 
and  estuaries  there  is  more  doubt.  The  principle  that  such  of 
them  as  are  narrow  should  belong  to  the  state  which  pos- 
sesses the  adjacent  land,  is  universally  admitted.  For  its  own 
protection  against  possible  enemies  it  is  entitled  to  exercise 
the  powers  of  ownership  over  what  are  really  gates  leading 
into  its  dominions.  But  when  we  come  to  define  the  exact 
extent  of  the  waters  which  may  properly  be  appropriated  in 
pursuance  of  this  principle,  we  find  no  general  agreement. 
If  the  distance  from  point  to  point  across  the  mouth  of  a bay 
is  not  more  than  six  miles,  that  bay  becomes  territorial  water 
under  the  accepted  rule  of  the  marine  league.  There  is, 
however,  a disposition  to  hold  that  the  distance  should  be  ex- 
tended ; but  at  present  the  common  consent  of  nations  has 
not  fixed  upon  a generally  accepted  limit,  though  there  is 
a considerable  amount  of  authority  in  favor  of  ten  miles. 

1 Annuaire  de  VInstitut  de  Droit  International,  1894-1895,  pp.  281-331. 


CONNECTED  WITH  PROPERTY. 


141 


This  was  the  rule  adopted  in  the  Fishery  Convention  of  1839 
between  Great  Britain  and  France  and  it  was  embodied  in 
the  Report  of  Mr.  Barclay,  to  which  allusion  has  just  been  made, 
but  the  Institute  by  a large  majority  raised  the  limit  to  twelve 
miles.  The  mixed  commission  appointed  under  the  provisions 
of  the  Convention  of  1853  between  the  United  States  and 
Great  Britain  for  the  purpose  of  settling  claims  made  by  the 
citizens  of  each  nation  upon  the  government  of  the  other, 
dealt  with  fishery  disputes,  and  decided  against  the  claim  of 
Great  Britain  that  the  Bay  of  Fundy  was  British  territorial 
water,  on  the  ground,  among  others,  that  the  distance  from 
headland  to  headland  across  its  opening  was  greater  than  ten 
miles.1 2  In  1888  a Fishery  Treaty  was  negotiated  at  Washing- 
ton between  the  two  powers,  but  failed  to  come  into  operation 
on  account  of  the  refusal  of  the  Senate  of  the  United  States 
to  ratify  it.  It  is,  however,  important  for  our  present  pur- 
pose, because  it  adopted  the  ten-mile  line  in  the  case  of  bays, 
creeks  and  harbors  not  otherwise  specially  provided  for  by 
its  articles.3  But  it  cannot  be  said  that  there  is  a definite 
rule  of  International  Law  on  this  matter,  as  there  is  in  the 
case  of  the  marine  league.  The  claims  of  states  to  large 
tracts  of  marginal  waters  — claims  which  are  themselves 
relics  of  yet  wider  claims  to  dominion  over  oceans  and  seas  — 
increase  the  difficulty  of  the  question.  Some  of  them  are 
dead  or  dormant ; but  when  a valuable  fishery  is  retained  for 
native  fishermen  by  the  assertion  of  sovereignty  over  a bay  of 
considerable  size,  or  when  considerations  of  self-protection  or 
political  advantage  are  prominent,  we  find  that  states  insist 
upon  and  often  obtain  recognition  of  their  demands,  some  of 
which  are  based  upon  very  ancient  precedent.  Thus  the 
Dutch  claim  to  regard  the  Zuyder  Zee  as  territorial  water  is 
generally  recognized,  and  some  writers  hold  that  the  United 

1 Hertslet,  Treaties,  V.,  89. 

2 Wheaton,  International  Law  (Dana’s  ed.),  note  142  ; Wharton,  Inter- 
national Law  of  the  United  States,  § 305  a. 

3 British  State  Papers,  United  States,  No.  1 (1888). 


142 


RIGHTS  AND  OBLIGATIONS 


States  possesses  in  full  ownership  Chesapeake  and  Delaware 
bays.1  Great  Britain  has  almost  forgotten  her  pretensions  to 
sovereignty  over  what  she  called  the  King’s  Chambers,  that 
is  to  say,  portions  of  open  sea  cut  off  by  drawing  imaginary 
lines  from  headland  to  headland  along  her  coast ; but  they 
have  never  been  formally  withdrawn.2  And  by  the  Fishery 
Convention  of  1839  already  alluded  to,  exceptions  were 
allowed  to  the  ten-mile  rule  laid  down  in  it.  The  utmost  we 
can  venture  to  say  is  that  there  is  a tendency  among  maritime 
states  to  adopt  this  rule,  and  probably  it  will  in  time  become 
the  law  of  the  civilized  world.  It  is,  however,  universally 
conceded  that  when  a bay  or  estuary  is  territorial  water,  the 
marine  league  is  to  be  measured  from  the  imaginary  line 
across  its  entrance. 

Lastly,  a state  possesses  the  islets  fringing  its  coast.  A 
hold  on  them  is  essential  to  its  peace  and  safety.  The 
question  was  raised  in  1805  in  the  case  of  the  Anna,3  which 
was  a ship  of  somewhat  doubtful  character,  captured  when 
flying  the  American  flag  by  a British  privateer  near  the 
mouth  of  the  Mississippi.  The  seizure  was  made  more  than 
three  miles  from  firm  ground,  but  within  a league  of  a chain 
of  mud  islets  which  fringed  the  coast  and  formed  “ a sort  of 
portico  to  the  mainland.”  The  United  States  was  neutral  in 
the  war  between  Great  Britain  and  Spain,  and  its  minister 
in  London  claimed  the  ship  in  the  British  Prize  Court,  on 
the  ground  that  the  capture  was  made  within  American 
territorial  waters.  The  judgment  of  Lord  Stowell  sustained 
this  contention  and  ordered  the  release  of  the  ship.  He  held 
that  the  islands,  though  not  firm  enough  to  be  habitable, 
must  be  regarded  as  part  of  the  territory,  since  they  were 
formed  by  alluvium  4 from  the  mainland,  and  their  possession 
was  necessary  for  the  command  of  the  river.  “ If  they  do 

1 Ortolan,  Diplomatic  de  la  Mer,  II.,  VIII.,  163;  C.  F.  de  Martens,  Precis, 
§ 42  ; Kent,  Commentary  on  International  Law  (Abdy’s  ed.),  113,  114. 

2 Walker,  Science  of  International  Law,  170,  notes  3 and  4. 

3 Robinson,  Admiralty  Reports , V.,  373. 

4 Justinian,  Institutes,  II.,  i.,  20. 


CONNECTED  WITH  PROPERTY. 


143 


not  belong  to  the  United  States  of  America,  any  other  power 
may  occupy  them,  they  might  be  embanked  and  fortified. 
What  a thorn  would  this  be  in  the  side  of  America ! ” There 
can  be  no  doubt  of  the  justice  of  Lord  Sto well’s  decision,  and 
the  rule  which  resulted  from  it  has  received  general  recog- 
nition. 


§92. 

Having  seen  of  what  a state’s  territory  consists,  we  have 
now  to  discuss  how  it  may  be  acquired.  International  Law 
recognizes  as  valid  a number  of  titles.  We 
will  describe  them  one  by  one,  and  set  forth  quiring  territory. 

. tit  rm  r>  (1)  Occupation. 

in  order  the  rules  applicable  to  each.  The  first 
and  perhaps  the  most  important  is 

Title  by  occupation. 


This  title  applies  only  to  territory  not  previously  held  by 
a civilized  state.  We  have  already  seen1  that  it  was  intro- 
duced into  International  Law  by  the  jurists  of  the  sixteenth 
and  seventeenth  centuries  in  order  to  settle  the  disputes 
which  arose  among  the  maritime  nations  of  Europe  with 
regard  to  their  respective  possessions  in  the  New  World. 
At  first  they  seemed  disposed  to  hold  that  mere  discovery 
was  sufficient  to  create  a good  and  complete  title.  Thus 
Spain  claimed  the  whole  coast  of  America  northward  from 
Florida,  because  in  1513  Ponce  de  Leon  was  the  first  Euro- 
pean to  land  there.  But  the  English  claimed  the  same  coast 
on  account  of  the  discovery  of  Cape  Breton  or  Newfound- 
land by  John  Cabot  in  1497,  and  the  exploration  of  the 
shore,  from  Nova  Scotia  to  Cape  Hatteras,  by  his  son 
Sebastian  in  1498.  The  exaggerated  importance  attached 
to  first  discovery  did  not  long  continue.  The  doctrine  that 
it  must  be  followed  by  some  formal  act  of  taking  possession, 
some  expression  of  the  will  of  the  state,  as  Vattel  put  it,2 


1 See  § 39. 


2 Droit  des  Gens , T.,  § 207. 


144 


RIGHTS  AND  OBLIGATIONS 


soon  arose.  Now  and  again  in  international  controversies 
States  laid  stress  upon  it  in  order  to  support  claims  otherwise 
inadmissible ; but  it  has  been  gradually  deposed  from  the 
position  it  once  occupied ; and  in  modern  times  few,  if  any, 
authorities  would  be  prepared  to  say  that  a good  title  to 
territory  could  be  based  by  a state  upon  the  bare  fact  that  its 
navigators  were  the  first  to  find  the  lands  in  question.  It  is 
true  that  the  controversies  of  the  seventeenth  and  eighteenth 
centuries,  between  the  colonizing  nations  of  Europe  as  to 
the  extent  of  their  possessions  on  the  American  continent, 
were  largely  settled  by  the  sword;  and  where  its  aid  was  not 
invoked  boundaries  were  determined  rather  by  compromise, 
or  the  political  exigencies  of  the  moment,  than  by  strict  legal 
considerations.  But,  nevertheless,  statesmen  and  publicists 
endeavored  to  find  reasonable  ground  for  national  claims, 
whether  they  were  referred  to  the  battle-field  or  the  council- 
chamber  for  settlement ; and  it  is  possible  to  deduce  some 
approximation  to  a consistent  body  of  doctrine  from  the 
history  of  the  controversies  and  diplomatic  transactions  con- 
cerned with  the  disputes  under  consideration.  The  process 
of  portioning  out  the  American  continent  among  civilized 
states  was  consummated  in  the  middle  of  the  nineteenth 
century  when  the  Treaty  of  1846  divided  the  great  North- 
west between  the  United  States  and  the  British  Empire.1 
From  that  time  onwards,  if  not  before,  every  foot  of  ground 
in  the  New  World  was  part  of  the  territory  of  some  civilized 
country,  and  no  power  was  free  to  obtain  fresh  possessions 
therein  by  occupation.  It  seemed,  therefore,  as  if  the  legal 
questions  connected  with  that  method  of  gaining  an  inter- 
national title  to  territory  had  no  more  than  an  historic 
interest.  They  were  superseded  by  new  and  pressing  con- 
troversies far  greater  in  immediate  importance,  and  the  space 
given  to  them  in  the  works  of  publicists  grew  less  and  less. 
But  the  last  few  years  have  seen  a great  revival  of  interest  in 
them,  owing  to  that  modern  “scramble  for  Africa”  which 
1 Treaties  of  the  United  States , p.  438. 


CONNECTED  WITH  PROPERTY. 


145 


has  taken  the  place  of  the  old  “scramble  for  America.”  The 
discoveries  of  Livingstone,  Speke,  Grant,  Burton,  Stanley, 
and  others  have  shown  that  the  interior  of  the  Dark  Conti- 
nent, instead  of  being  a desert,  is  a vast  and  fertile  territory, 
diversified  in  climate,  elevation  and  productions,  full  of  great 
lakes  and  pierced  by  mighty  rivers,  the  most  important  of 
which  are  navigable  for  thousands  of  miles,  or  can  be  made 
so  with  little  trouble  and  expense.  The  earth-hunger  of  the 
Old  World  has  been  aroused.  The  cupidity  of  some  and  the 
benevolence  of  others  have  led  to  countless  expeditions  of 
conquest,  conversion  and  civilization.  The  absence  of  any- 
thing like  wars  of  extermination  waged  against  the  natives, 
or  wars  of  conquest  waged  by  the  colonizing  powers  against 
each  other’s  settlers,  point,  in  spite  of  much  that  is  mean  and 
sordid  and  cruel,  to  an  improvement  in  international  morality 
during  the  time  that  has  elapsed  since  a partition  of  America 
was  attempted  by  the  early  discoverers.  Argument  and  com- 
promise played  but  a little  part  in  those  proceedings ; they 
have  bulked  large  in  the  negotiations  of  the  last  few  years 
with  regard  to  Africa.  The  principles  of  occupation  have 
been  restudied  and  applied  anew.  Jurists  have  thrown  into 
legal  form  the  best  opinions  and  most  accepted  doctrines  of 
former  ages.  Their  task  has  been  one  of  no  small  magni- 
tude, and  it  is  not  to  be  wondered  at  that  their  inquiries  and 
reasonings  have  not  always  resulted  in  exact  agreement  among 
themselves.  But  the  points  of  difference  have  been  unim- 
portant in  comparison  with  the  points  of  similarity ; and  each 
succeeding  writer  of  repute  has  been  able  to  add  something 
to  the  work  of  digesting  a mass  of  controversial  arguments 
into  a body  of  consistent  law.  We  will  endeavor  to  state 
as  clearly  as  possible  what  may  be  deemed  the  modern 
doctrine  of  occupation,  warning  our  readers,  however,  that  in 
some  of  its  parts  it  must  be  taken  to  represent  tendencies 
towards  law  rather  than  rules  of  universal  acceptance. 


146 


RIGHTS  AND  OBLIGATIONS 


93. 


Occupation  as  a means  of  acquiring  sovereignty  and  do- 
minion applies  only  to  such  territories  as  are  in  the  eye  of 
Occupation  applies  International  Law  res  nullius.1  That  is  to  say, 
iiui'iius  ami  they  must  be  no  part  of  the  possessions  of  any 
Annexation' plus  civilized  state.  It  is  not  necessary  that  they 
t&)  settlement.  should  be  uninhabited.  Tracts  roamed  over  by 
savage  tribes  have  been  again  and  again  appropriated,  some- 
times after  some  kind  of  compensation  has  been  given  to  the  na- 
tives for  the  intrusion  of  the  white  man  upon  them,  sometimes 
with  no  regard  for  their  claims  and  wishes.  And  even  the 
attainment  by  the  original  inhabitants  of  some  degree  of  civ- 
ilization and  political  coherence  has  not  sufficed  to  bar  the 
acquisition  of  their  territory  by  occupancy.  All  territory  not 
in  the  possession  of  states  who  are  members  of  the  family  of 
nations  and  subjects  of  International  Law  must  be  considered 
as  technically  res  nullius  and  therefore  open  to  occupation. 
The  rights  of  the  natives  are  moral,  not  legal.  International 
Law  knows  nothing  of  them,  though  International  Morality 
demands  that  they  be  treated  with  consideration. 

Occupation  is  not  effected  by  discovery.  The  world  has 
become  so  well  known  that  very  little  land  remains  to  be 
discovered  in  modern  times,  and  there  is  often  great  doubt 
and  dispute  with  regard  to  the  exploits  of  earlier  navigators. 
The  utmost  that  can  be  said  for  discovery  to-day  is  that,  if 
a navigator  of  one  state  came  home  with  the  news  that  he 
had  found  an  island  or  district  hitherto  unknown,  other 
states  would  be  bound  by  the  comity  of  nations  to  wait  a 
reasonable  time  before  sending  out  expeditions  in  order  to 
annex  it.  We  may  add  that  though  discovery  alone  does 
not  give  a title,  it  strengthens  a title  based  on  occupancy.2 
The  best  modern  practice,  and  the  views  of  the  most  acute 


1 Digest,  XLI.,  i.,  3. 

2 Wharton,  International  Law  of  the  U S.,  I.,  7; 
Law,  66,67. 


Maine,  International 


CONNECTED  WITH  PROPERTY. 


147 


and  thoughtful  publicists,  give  authority  to  the  doctrine  that 
effective  international  occupation  is  made  up  of  two  insepa- 
rable elements,  — annexation  and  settlement.  By  the  formal 
act  of  annexation  the  annexing  state  notifies  its  intention  of 
henceforth  regarding  the  annexed  territory  as  a part  of  its 
dominions ; and  by  the  patent  fact  of  settlement  it  takes 
actual  physical  possession  of  the  territory  and  retains  a hold 
upon  it.  The  formalities  accompanying  annexation  are  not 
prescribed  by  International  Law.  In  modern  times  it  is 
usual  to  hoist  the  national  flag  and  read  a proclamation 
setting  forth  the  intention  of  the  government  to  take  the 
territory  in  question  as  its  own ; 1 but  any  ceremony  of  clear 
import  done  on  the  spot  in  a public  manner  is  sufficient. 
It  must,  however,  be  an  undoubted  act  of  the  central  govern- 
ment speaking  on  behalf  of  the  state.  If  the  proper  authori- 
ties have  sent  out  an  official  specially  charged  with  the  duty 
of  making  a particular  acquisition,  the  act  of  annexation 
performed  by  him  is  in  the  highest  degree  a state  act,  and 
therefore  valid.  But  subordinate  authorities  have  no  such 
power,  and  their  proceedings  would  be  null  and  void  unless 
they  were  ratified  by  the  supreme  government.2  Thus  when 
in  1883  the  Ministry  of  the  British  Colony  of  Queensland 
endeavored  to  annex  on  their  own  authority  the  greater  part 
of  the  island  of  New  Guinea,  together  with  New  Britain, 
New  Ireland,  and  a large  number  of  other  islands  off  the 
north  coast  of  Australia  from  longitude  141°  to  longitude 
155°,  the  home  government  refused  ratification  of  so  sweeping 
an  act.  All  it  would  consent  to  do  was  to  add  to  the 
Empire  a large  portion  of  the  southeast  of  New  Guinea. 
This  was  done  in  1884, 3 and  at  the  end  of  that  year  Germany 
annexed  another  portion,  and  established  a protectorate  over 
the  islands  of  New  Britain  and  New  Ireland,  which  had  been 
discovered  by  Dampier,  a great  British  navigator,  in  1699,  and 

1 e.  g.  Hertslet,  Treaties,  XVII.,  070,  671. 

2 Maine,  International  Law , 66-68. 

3 Hertslet,  Treaties , XVII.,  678,  679, 


148 


RIGHTS  AND  OBLIGATIONS 


nominally  taken  possession  of  for  Great  Britain  in  1767  by 
Captain  Cartaret  of  the  Royal  Navy.  His  act  was,  however, 
never  ratified,  and  consequently  it  had  no  validity,  though  he 
bore  the  commission  of  King  George  III.1  A private  person 
cannot  perform  even  an  inchoate  annexation.  Any  ceremony 
he  may  go  through  is  invalid  from  the  beginning,  and  in- 
capable of  ratification.  In  order  to  annex,  a state  act  is 
necessary,  which  may  be  direct,  as  when  it  is  done  by  an 
officer  commissioned  specially  for  the  purpose  or  armed  with 
a general  authority  to  annex  under  certain  circumstances, 
or  indirect,  as  when  it  is  performed  by  subordinate  authorities 
on  their  own  initiative,  but  afterwards  ratified  by  the  central 
government. 

Annexation  alone  is  incapable  of  giving  a good  title.  It  is 
necessary  for  effective  occupation  that  some  hold  on  the 
country  be  taken  and  maintained.  This  is  done  by  settlement ; 
that  is  to  say,  the  actual  establishment  of  a civilized  adminis- 
tration and  civilized  inhabitants  upon  the  territory  in  question 
and  their  continuous  presence  therein.  They  may  be  es- 
tablished at  one  spot  or  many.  Their  posts  may  be  civil,  or 
military,  or  a mixture  of  the  two.  They  may  live  upon  the 
resources  of  the  country  or  upon  supplies  sent  from  home. 
But  they  must  be  a permanent  community.  A temporary 
camp  withdrawn  after  a time  to  the  mother-country  will  not 
be  sufficient  to  keep  alive  rights  of  sovereignty  over  the  terri- 
tory purporting  to  be  occupied.  There  must  be  a real  pos- 
session, as  Vattel  argued  nearly  a century  and  a half  ago.2 
Thus  Great  Britain  has  a settlement  at  Port  Moresby  in 
British  New  Guinea,  and  has  established  there  a government 
and  a central  court,  while  Germany  has  placed  her  portion  of 
New  Guinea  under  an  Imperial  Commissioner,  and  has  a few 
little  stations  along  the  coast. 3 In  most  cases  annexation 
comes  first  and  settlement  follows,  but  this  order  is  sometimes 

1 London  Times  of  Dec.  23,  1884  ; Annual  Register  for  1884 , pp.  432-434. 

2 Droit  des  Gens,  I.,  § 207. 

3 Statesman's  Year  Book,  1894,  pp.  239  and  569. 


CONNECTED  WITH  PROPERTY. 


149 


reversed.  A state  occasionally  annexes  unoccupied  territory 
because  a little  group  of  its  subjects  have  gone  there  to  trade, 
and  a settlement  has  been  formed  which  it  deems  desirable  to 
place  under  its  authority  and  protection.  The  mere  fact  of 
settlement,  like  the  mere  fact  of  annexation,  will  not  give 
sovereign  rights  while  it  stands  alone.  It  does  not  matter 
which  of  the  two  comes  first,  but  they  must  coexist  in  order 
to  make  a valid  occupation.  Moreover,  it  is  necessary,  that 
the  hold  upon  the  territory  should  be  maintained  continuously, 
or  at  the  least  that  any  cessation  of  control  should  be  tempo- 
rary and  intermittent.  A territory  once  occupied  can  be 
abandoned,  as  the  British  abandoned  the  island  of  Santa  Lucia 
in  1640,  after  their  settlers  had  been  massacred  by  the  Caribs. 
And  when  such  an  abandonment  has  been  shown  by  lapse 
of  time,  or  in  any  other  way,  to  be  definite,  another  state  is  at 
liberty  to  treat  the  territory  as  again  in  the  condition  of  a res 
nullius  and  occupy  it,  as  the  French  occupied  Santa  Lucia 
in  1650.  But  the  case  of  Delagoa  Bay  seems  to  prove,  that 
a temporary  lapse  of  control  over  territory  will  not  be  suffi- 
cient to  invalidate  a claim  based  upon  the  exercise  for  centu- 
ries of  more  or  less  continuous  authority.  The  territory  in 
question  was  claimed  by  England  and  Portugal,  and  the 
dispute  between  them  was  referred  to  the  arbitration  of 
Marshal  MacMahon,  then  President  of  the  French  Republic. 
His  decision  in  1875  in  favor  of  Portugal  was  based  upon  the 
ground  we  have  indicated.1 

§ 94. 

It  is  admitted  on  all  hands  that  the  rights  of  sovereignty 
gained  by  occupation  extend  beyond  the  territory  inhabited 
and  used  by  the  original  settlers  or  commanded 
by  the  guns  of  their  forts.  What  is  needed  for  gained  by 
their  security  and  to  afford  room  for  the  possible  occupatlon' 
expansion  of  their  settlements  in  the  not  too  distant  future 

1 Hall,  International  Law,  § 34  ; Pitt  Cobbett,  Leading  Cases  in  Interna- 
tional Law , pp.  262-263. 


150 


RIGHTS  AND  OBLIGATIONS 


should  be  added.  But  the  reasonable  doctrine  of  expansion 
must  not  be  pushed  to  absurd  lengths.  A state  which  has  es- 
tablished one  or  two  posts  on  a small  portion  of  the  coast  of 
a vast  continent  cannot  found  thereon  a claim  to  exercise 
sovereign  power  over  the  whole  of  it,  and  exclude  the  colonies 
of  other  states,  on  the  ground  that  after  the  lapse  of  many 
centuries  her  own  settlers  may  overspread  it,  if  all  goes  well 
with  them.  The  questions  connected  with  occupation  which 
have  proved  in  practice  to  be  the  most  fruitful  sources  of 
controversy  and  war  have  been  boundary  disputes.  States 
have  been  unable  to  agree  as  to  how  much  territory  was 
acquired  by  an  act  or  series  of  acts  of  annexation  and  settle- 
ment, and  the  Roman  Law  from  which  the  rules  of  occupancy 
were  originally  derived  gave  little  help  towards  the  solution 
of  these  difficulties.  But  a few  principles  and  precepts,  some 
positive  and  some  negative,  may  be  evolved  from  their  history. 

The  whole  of  an  island,  unless  it  be  a very  large  one,  and 
even  a group  of  very  small  islands,  may  be  acquired  by  one 
act  of  annexation  and  one  settlement.  Thus,  in  1885,  Great 
Britain  and  Germany  took  possession  of  the  Louisiade  Archi- 
pelago and  the  Marshall  Islands  respectively.  Both  groups 
are  situated  off  the  eastern  end  of  New  Guinea,  and  were 
taken  in  consequence  of  the  acquisitions  made  on  that  island. 
In  each  case  one  formal  act  of  annexation  was  held  to  be 
sufficient  for  the  entire  group.1  The  rules  that  apply  to 
continents  will  apply  to  islands  of  vast  extent  like  Australia, 
which  is  often  called  a continent.  It  belongs  to  the  Empire 
of  Great  Britain,  because  a large  number  of  British  settle- 
ments fringe  its  coasts  and  run  far  up  into  the  interior.  But 
there  can  be  no  doubt  that  if  other  powers  had  colonized 
there  a hundred  years  ago,  when  England’s  sole  settlement 
was  at  Botany  Bay,  they  would  have  been  entitled  to  divide 
with  her  the  vast  territories  that  are  now  hers  exclusively  by 
a perfectly  valid  title. 

A state  cannot  acquire  a whole  continent  by  establishing 
1 Annual  Register  for  1884,  pp.  433,  434. 


CONNECTED  WITH  PROPERTY. 


151 


a few  settlements  upon  one  of  its  coasts  and  going  through 
the  formal  ceremony  of  annexation,  nor  can  the  colonization 
of  one  shore  or  a part  of  one  shore  of  a continent  give  a title 
right  across  it  to  the  opposite  coast.  These  statements  are 
mere  negations ; but,  nevertheless,  they  enunciate  a very  im- 
portant principle,  and  one  which  was  not  at  first  recognized 
by  the  colonizing  nations  of  Europe.  Spain  and  France  vied 
with  one  another  in  the  magnitude  of  the  pretensions  they 
based  upon  isolated  acts  of  discovery,  annexation  and  settle- 
ment, and  some  of  the  charters  given  by  the  kings  of  England 
to  the  early  British  colonists  in  America  expressly  granted 
territorial  rights  across  the  continent  to  the  Pacific  Ocean. 
But  when  these  documents  were  referred  to  by  the  American 
Commissioners  at  the  Conference  held  in  London  in  1826-1827 
on  the  Oregon  boundary  question,  the  British  negotiators 
declared  that  they  had  no  international  validity  and  could 
give  to  the  grantees  no  more  than  an  exclusive  title  against 
their  fellow-subjects.1  This  was  undoubtedly  a correct  state- 
ment. Modern  International  Law  lends  no  sanction  to  such 
preposterous  claims. 

Occupation  of  a considerable  extent  of  coast  gives  a title 
up  to  the  watershed  of  the  rivers  which  enter  the  sea  along 
the  occupied  line ; but  settlement  at  the  mouth  of  a river 
does  not  give  a title  to  all  the  territory  drained  by  that  river. 
Water  is  appurtenant  to  land,  not  land  to  water.  If  a coast- 
line is  effectively  occupied,  the  rivers  which  fall  into  the  sea 
throughout  its  extent,  and  the  country  drained  by  them,  are 
held  to  belong  in  full  sovereignty  to  the  power  whose  settle- 
ments are  dotted  along  the  shore.  This  rule  provides  room 
for  reasonable  extension  inland,  but  gives  no  countenance  to 
the  limitless  pretensions  of  which  we  have  just  spoken.  It 
is  nowhere  better  set  forth  than  in  the  words  of  Messrs. 
Monroe  and  Pinckney,  the  American  negotiators  at  Madrid 
in  the  controversy  of  1808-1805  about  the  boundaries  of 
Louisiana.  They  declared  that  “ When  any  European  nation 
1 Twiss,  Law  of  Nations , I.,  § 126. 


152 


RIGHTS  AND  OBLIGATIONS 


takes  possession  of  any  extent  of  sea-coast,  that  possession  is 
understood  as  extending  into  the  interior  country  to  the 
sources  of  the  rivers  emptying  within  that  coast,  to  all  their 
branches  and  the  country  they  cover.”  This  doctrine  they 
described  as  “ dictated  by  reason  ” and  “ adopted  in  practice 
by  European  nations.”  It  is  generally  accepted  as  good  in 
law;  and,  as  Sir  Travers  Twiss  points  out,1  is  inconsistent 
with  the  claim  to  the  whole  territory  drained  by  the  Columbia 
River,  put  forth  by  Mr.  Gallatin  on  behalf  of  the  United 
States  in  1827,  on  the  ground  of  first  discovery  of  the  mouth 
of  the  river,  and  the  subsequent  erection  of  a trading-post 
close  to  it.  This  claim  was  never  allowed ; and  when  the 
Treaty  of  1846  closed  the  controversy,  it  gave  to  Great  Britain 
the  upper  waters  of  the  Columbia  River  and  the  country 
through  which  they  flow.2 

In  the  absence  of  natural  features  the  boundary  of  the 
contiguous  settlements  of  two  states  along  the  same  coast 
should  be  drawn  midway  between  the  last  posts  on  either 
side.  The  boundary  line  between  the  possessions  of  the 
United  States  and  Spain  on  the  Gulf  of  Mexico  was  finally 
drawn  in  accordance  with  this  principle.3  But  there  can  be 
no  doubt  that  natural  boundaries  would  be  preferred  to  an 
imaginary  line  in  cases  where  they  exist.  If  a navigable  river 
falls  into  the  sea  between  settlements  made  by  one  nation 
and  settlements  made  by  another,  each  would  be  deemed  to 
have  occupied  up  to  the  bank  on  its  side  of  the  river,  and  the 
boundary  line  between  them  would  be  drawn  down  the  middle 
of  the  channel. 

§ 95. 

The  rules  just  enunciated  close  the  door  to  many  disputes, 
but  all  of  them  are  not  so  precise  in  their  terms  as  to  be  in- 
ReCent  capable  of  diverse  interpretations  when  applied 

developments  of  , , n/r  • , • • t 1 

the  doctrines  of  to  concrete  cases.  Moreover,  it  is  conceivable 
applied  to  Africa.  that  a state  might  contest  the  applicability  of 

1 Law  of  Nations,  I.,  §§  125,  120.  2 Treaties  of  the  United  States,  p.  436. 

3 Ibid.,  p.1017  ; Hall,  International  Law,  § 37. 


CONNECTED  WITH  PROPERTY. 


153 


some  of  them  to  Africa,  since  they  are  derived  chiefly  from 
American  experience,  and  the  two  continents  are  not  alike 
either  in  geographical  features  or  in  political  circumstances. 
Considerations  such  as  these  have  prompted  the  great  European 
states  who  have  engaged  in  the  recent  competition  for  terri- 
tory and  influence  in  Africa  to  enter  into  agreements  among 
themselves  with  a view  to  avoiding  future  conflicts.  These 
have  taken  the  form  of  treaties  for  the  delimitation  of  what 
are  called  Spheres  of  Influence.1  Each  of  the  contracting 
parties  is  free  to  acquire  territory  by  occupation  and  perform 
any  act  of  sovereignty  without  interference  from  the  other 
within  the  territory  thus  assigned  to  it  by  international  agree- 
ment. The  chief  of  these  agreements  are  those  entered  into 
with  regard  to  East  Africa  and  Southwest  Africa  between 
Great  Britain  and  Germany  in  July,  1890,  with  regard  to 
West  Africa  between  Great  Britain  and  France  in  August, 
1890,  and  Great  Britain  and  Germany  in  November,  1893, 
and  with  regard  to  South  Africa  between  Great  Britain  and 
Portugal  in  June,  1891.  There  are  also  agreements,  concluded 
in  1886,  between  Portugal  and  France,  and  Portugal  and 
Germany,  and  one  between  Great  Britain  and  Italy  concluded 
in  1891.2  Moreover,  the  boundaries  of  the  Congo  Free  State 
are  defined  by  a number  of  conventions,  and  its  rulers  have 
liberty  of  acquisition  within  the  limits  therein  marked  out. 
Thus  each  of  the  great  colonizing  nations  has  obtained  a free 
hand  over  very  wide  tracts  of  country,  and  the  possibility  of 
such  struggles  between  them  as  took  place  on  the  American 
continent  is  reduced  to  a minimum.  It  is  not,  of  course, 
altogether  destroyed ; for  the  powers  who  are  not  parties  to 
the  agreements  in  question,  and  do  not  accord  recognition  to 
them,  are  in  no  way  bound  by  their  provisions,  and  retain  the 
right  under  the  common  law  of  nations  to  occupy  any  terri- 
tory which  is  technically  res  nullius.  But  the  danger  of 
future  collision  is  very  small,  since  every  state  anxious  to 
participate  in  the  division  of  Africa  is  already  supplied  with 
1 See  § 103.  2 The  list  in  the  text  is  not  complete.  There  have  been 

several  agreements  since  1891. 


154  RIGHTS  AND  OBLIGATIONS 

more  territory  than  it  can  reduce  into  possession  for  a large 
number  of  years.  And  an  agreement  embodied  in  the  Final 
Act  of  the  West  African  Conference  of  1885,  which  was  signed 
by  all  the  powers  of  Europe  and  also  by  the  United  States, 
contained  provisions  which  will  tend  to  remove  difficulties 
arising  out  of  conflicting  claims  to  the  same  territory.  Each 
of  the  signatory  powers  bound  itself  to  send  a formal  notifi- 
cation to  the  others  whenever  for  the  future  it  acquired  by 
occupation  a tract  of  land  on  the  coast  of  Africa  or  assumed 
a Protectorate  there.  This  rule  has  been  already  acted  upon 
in  several  instances,  and  it  is  much  to  be  wished  that  all 
states  would  adopt  it  and  extend  it  to  their  future  acquisitions 
of  unoccupied  land.  The  powers  represented  at  the  West 
•African  Conference  agreed,  further,  that  the  appropriating 
state  must  keep  reasonable  order  throughout  the  territory 
occupied  by  it  on  the  coasts  of  the  African  continent,  so  as 
to  ensure  freedom  of  trade  and  transit,  and  protect  existing 
rights.1  This  provision  too  could  with  great  advantage  be 
turned  into  a general  rule  of  International  Law. 


96. 


It  is  impossible  to  study  the  history  of  recent  territorial 
acquisitions  in  Africa  and  elsewhere  without  being  struck  by 
The  native  tribes  simultaneous  presence  of  two  things  which 

territorles'shouid  ^rst  S1ght  appear  incompatible.  We  find,  on 
DsUceandTrained  the  one  hand,  in  treaties  and  diplomatic  docu- 
m civilization.  ments  little  or  no  reference  to  the  existence  of 

native  inhabitants.  The  countries  they  live  in  are  partitioned 
without  the  slightest  regard  to  their  wishes.  They  are  not 
deemed  to  possess  any  rights.  They  are  simply  ignored  as 
having  no  locus  standi  in  the  matter.  On  the  other  hand,  we 
discover  that  when  the  states  who,  in  their  mutual  agreements, 
pay  no  attention  to  the  natives  come  to  deal  singly  and  di- 
rectly with  new  territory  which  they  wish  to  acquire,  they  are 
1 British  State  Papers,  Africa , No.  4 (1885),  p.  312. 


CONNECTED  WITH  PROPERTY. 


155 


careful  to  make  treaties  with  the  inhabitants,  and  as  a rule 
do  not  take  over  the  country  of  a tribe  without  some  agree- 
ment with  it.  For  instance,  about  three  hundred  treaties 
have  been  concluded  with  native  states  and  tribes  in  respect 
of  the  British  territories  in  the  basin  of  the  river  Niger.1 
This  seeming  inconsistency  is  explained  when  we  reflect  that 
International  Law,  as  a technical  system  of  rules  for  de- 
termining the  actions  of  states  in  their  mutual  relations,  is 
concerned  with  civilized  communities  alone.  Occupation 
gives  a valid  title  under  it ; but  the  title  can  be  valid  only  as 
between  the  states  who  are  subjects  of  the  law.  When  such 
states  come  to  deal  with  native  tribes,  though  the  technical 
rules  of  International  Law  do  not  apply,  moral  considerations 
do.  Justice  demands  that  the  inhabitants  of  occupied  districts 
be  treated  with  fairness.  The  old  idea  that  non-Christian 
peoples  could  be  lawfully  dispossessed,  and  even  slain,  out- 
raged the  conscience  of  Christendom,  and  has  been  long  ago 
consigned  to  the  limbo  of  forgotten  theories.  The  sophistries 
whereby  Vattel2  sought  to  justify  the  acquisition  of  the  lands 
of  nomads,  on  the  ground  that  they  took  up  more  territory 
than  they  had  occasion  for  if  they  would  live  industrious 
and  agricultural  lives,  would  have  but  little  weight  to-day. 
There  is  a strong  feeling  abroad  that  native  races  ought  not  to 
be  exploited.  Self-respecting  states  are  held  bound  to  treat 
them  with  justice  and  humanity.  How  far  this  theory  is 
reconcilable  with  the  practice  of  acquiring  sovereignty  over 
them,  and  sending  white  men  to  live  and  trade  and  farm  and 
mine  among  them  on  the  strength  of  concessions  obtained 
from  their  chiefs,  is  a very  difficult  question  to  answer.  In 
some  instances  civilized  rule  has  increased  the  number  and 
happiness  of  native  races  and  is  gradually  educating  them  in 
all  the  arts  of  life.  In  others,  tribes  have  withered  up  before 
the  impact  of  the  white  man  like  grass  before  a prairie  fire. 
It  is  impossible  to  lay  down  general  rules  to  cover  all  cases, 

1 Statesman's  Year  Book  for  1894 , p.  190.  The  validity  of  some  of  these 
treaties  is  now  (1897)  in  dispute  between  Great  Britain  and  France. 

2 Droit  des  Gens,  I.,  § 209. 


156 


RIGHTS  AND  OBLIGATIONS 


and  in  a work  like  the  present  we  cannot  enter  into  details. 
Of  one  thing  we  may  be  sure,  that  when  representatives  of 
superior  and  inferior  races  come  into  contact,  the  former  must 
prevail.  They  are  often  asked  to  rule  by  trib.es  who  feel  the 
need  of  their  protection.  But  they  should  never  inaugurate 
their  authority  by  acts  of  cruelty  or  bad  faith,  and  should 
govern  in  a paternal,  not  a tyrannical,  manner.  The  ad- 
vantage of  their  subjects  should  be  their  object  rather  than 
their  own  profit ; and  their  ultimate  aim  should  be  to  educate 
their  wards  so  that  they  may  in  time  learn  to  govern  them- 
selves. 

§97. 

Among  the  titles  it  is  possible  to  obtain  through  the  trans- 
fer of  territories  already  in  the  possession  of  civilized  states,  the 

most  important  is  „..  7 , 

Title  by  cession. 


Cession  is  the  formal  handing  over  by  agreement  of  terri- 
torial possessions  from  one  state  to  another.  The  agreement 
is  embodied  in  a treaty  which  usually  contains 
ac^arlng territory,  stipulations  as  to  the  transfer  along  with  the 

(2)  Cession.  r . . ° „ . 

ceded  district  of  a proportionate  snare  of  the  pub- 
lic debt  of  the  ceding  state.  Moreover,  questions  connected 
with  the  rights  of  citizenship  of  its  inhabitants  and  rights 
over  the  state  domains  within  it  are  usually  settled  in  the 
treaty  ; hut  no  general  rule  can  be  laid  down  as  to  these 
matters.  The  stipulations  respecting  them  will  vary  with  the 
circumstances  of  each  case. 

Since  cession  is  the  usual  method  whereby  changes  are 
effected  in  the  distribution  of  territory  among  states  which  are 
subjects  of  International  Law,  it  follows  that  cessions  may 
take  place  in  consequence  of  transactions  of  various  kinds. 
Of  these  we  will  consider  first  Sale.  It  is  not  very  frequent ; 
but  cases  of  it  are  to  be  found  even  in  modern  times,  as  when 
in  1867  the  United  States  purchased  Russian  America  for 
7,200,000  dollars.1  The  next  ground  of  cession  is  Grift. 

1 Treaties  of  the  United  States,  p.  939. 


CONNECTED  WITH  PROPERTY. 


157 


Free  gifts  of  territory  are  not  altogether  unknown,  though  as 
a rule  the  intercourse  of  states  is  not  conducted  on  principles 
of  lavish  generosity.  Yet  a government  that  desired  for 
special  purposes  to  retain  another’s  good-will  has  been  known 
to  make  a gift  of  territory  by  treaty  of  cession.  Thus  in  1762 
France  ceded  to  Spain  the  colony  of  Louisiana,  in  order  to 
indemnify  her  for  the  loss  of  Florida,  which  had  been  trans- 
ferred to  England  by  the  Treaty  of  Paris  ; 1 and  in  1850  Great 
Britain  ceded  to  the  United  States  a portion  of  the  Horse- 
shoe Reef  in  Lake  Erie,  in  order  that  the  government  of 
Washington  might  erect  a lighthouse  thereon.2 3  But  in 
matters  of  transfer  of  territory  the  gift  is  far  more  often 
forced  than  free.  A state  beaten  in  a war  is  sometimes  obliged 
to  make  over  a province  or  a colony  to  the  victor  as  one  of  the 
conditions  of  peace.  Indeed,  most  cessions  are  the  results  of 
warfare  and  pome  under  the  head  of  forced  gifts.  One  of  the 
most  recent  instances  is  to  be  found  in  the  cession  of  Alsace 
and  part  of  Lorraine  by  France  to  Germany.  This  was  done 
by  the  Treaty  of  Frankfort  of  1871, 3 and  was  one  of  the 
results  of  the  defeat  and  downfall  of  France  in  the  war  of 
that  and  the  preceding  year.  The  last  ground  of  cession  we 
will  mention  is  Exchange.  It  was  common  enough  in  times 
when  territories  were  cut  and  carved  in  order  to  make 
provision  for  the  scions  of  ruling  families,  but  the  growth  of 
the  principle  that  populations  should  have  a voice  in  the 
settlement  of  their  political  destiny  has  made  it  comparatively 
rare.  We  can,  however,  find  one  instance  in  recent  European 
history.  By  the  Treaty  of  Berlin  of  1878  Roumania  ceded  to 
Russia  that  portion  of  Bessarabia  given  to  it  at  Russia’s 
expense  in  the  Treaty  of  Paris  of  1856,  and  received  in 
exchange  the  Dobroutcha,  which  was  taken  from  Turkey.4 

1 Wheaton,  History  of  the  Laio  of  Nations,  Pt.  II.,  § 3 ; C.  de  Martens, 
Becueil,  I.,  29-36  ; Phillimore,  Commentaries , Pt.  III.,  Ch.  xiv. 

2 Treaties  of  the  United  States,  p.  444. 

3 Hertslet,  Map  of  Europe  by  Treaty,  III.,  1955. 

4 Holland,  European  Concert  in  the  Eastern  Question,  p.  302. 


158 


RIGHTS  AND  OBLIGATIONS 


§98. 

Our  next  task  is  to  explain  the  nature  of 
Title  by  conquest. 

It  is  necessary  to  begin  by  distinguishing  conquest  in  the 
legal  sense  from  conquest  in  the  military  sense.  The  latter 
takes  place  when  the  agents  of  one  belligerent 
acquiring  territory,  state  drive  the  agents  of  the  other  out  of  a terri- 

(3)  Conquest.  ° 

tory  and  hold  it  by  military  force.  The  former 
is  brought  about  when  the  victorious  state  exercises  continu- 
ously all  the  powers  of  sovereignty  over  a territory  conquered 
in  a military  sense,  and  signifies  by  some  formal  act,  such  as 
a diplomatic  circular  or  a proclamation  of  annexation,  its  inten- 
tion of  adding  that  territory  to  its  dominions.  The  question 
of  what  constitutes  a valid  conquest  in  the  legal  sense  was 
fully  discussed  after  the  downfall  of  Napoleon  in  connection 
with  certain  annexations  of  his  in  Germany  and  Italy.  The 
most  famous  of  these  cases  was  that  of  Hesse  Cassel ; and  it 
seems  to  be  generally  admitted  in  respect  of  it  that  the 
French  Emperor  had  acquired  the  Electorate  by  conquest  so 
as  to  give  international  validity  to  acts  done  in  the  capacity 
of  its  sovereign.  His  troops  had  overrun  it  in  1806,  and  he 
had  acted  as  supreme  ruler  for  some  time,  and  had  then  added 
the  territory  to  the  Kingdom  of  Westphalia,  which  he  created 
for  his  brother  Jerome,  and  which  was  recognized  by  manjr 
powers  and  lasted  till  1813.1  Title  by  conquest  differs  from 
title  by  cession  in  that  the  transfer  of  the  territory  is  not 
effected  by  treaty,  and  from  title  by  prescription  in  that 
there  is  a definite  act  or  series  of  acts,  out  of  which  the 
title  arises.  These  acts  are  successful  military  operations ; 
but  if  a province  conquered  in  a war  is  afterwards  made  over 
to  the  victorious  power  by  treaty,  it  is  acquired  by  cession. 
Title  by  conquest  arises  only  when  no  formal  international 

1 Phillhnore,  Commentaries , Pt.  XII.,  Ch.  vi. 


CONNECTED  WITH  PROPERTY. 


159 


document  transfers  the  territory  to  its  new  possessor.  Title 
by  prescription  arises  only  when  no  fact  but  long-continued 
possession  can  be  alleged  as  a foundation  for  the  existence  of 
sovereign  rights. 

§99. 

In  spite  of  denials  of  the  validity  of 

Title  by  prescription 

by  some  writers,1  who  lay  themselves  open  to  the  imputation 
of  mistaking  their  own  theories  of  what  is  just  and  fitting  for 
the  public  law  of  the  civilized  world,  there  can 

. , . . Legal  modes  of 

be  no  doubt  that  long-continued  possession  ol  acquiring  territory. 

. . . . t-  . , (4)  Prescription. 

territory  gives  a good  title  to  it  m International 
Law  when  no  other  ground  can  be  clearly  shown,  and  even 
in  cases  where  possession  was  originally  acquired  by  illegal 
and  wrongful  acts.  It  is  difficult  to  see  what  other  title  the 
older  states  of  Europe  could  put  forward  to  the  lands  on 
which  their  people  have  been  settled  from  time  immemorial. 
The  same  reasons  which  justify,  and  even  compel,  the  recog- 
nition of  prescription  as  a valid  ground  of  title  to  private 
property  by  the  municipal  law  of  all  civilized  peoples,  sup- 
port its  admission  into  International  Law.  It  is  as  neces- 
sary to  put  a limit  to  disputes  about  national  ownership  as  it 
is  to  close  legal  controversies  between  individuals.  The  only 
distinction  between  the  two  cases  arises  from  the  absence  of 
a common  superior  over  states.  There  being  no  central 
authority  to  make  and  enforce  rules,  the  length  of  time 
requisite  to  give  a title  by  prescription  cannot  be  exactly 
defined,  as  it  is  in  municipal  law.  But  nevertheless  the 
principle  is  undoubted,  and  a power  which  should  refuse  to 
recognize  it  would  soon  be  put  under  ban  as  a wanton  dis- 
turber of  the  general  peace. 

1 e.g.  G.  F.  de  Martens,  Precis,  §§  70,  71. 


160 


RIGHTS  AND  OBLIGATIONS 


§100. 

It  now  remains  for  us  to  consider 

Title  by  accretion. 

This  applies  only  to  water-boundaries ; and  the  rules  which 
define  and  limit  it  are  taken  with  little  variation  from  Roman 
Law.1  When  the  action  of  water  adds  to  the 
quiring  territory,  land,  or  when  islands  are  formed  off  the  coast 

(5)  Accretion. 

of  a state,  whether  by  alluvium,  or  from  any 
other  cause,  they  are  regarded  as  portions  of  the  territory. 
When  a waterway  is  the  boundary  between  two  states,  islands 
formed  on  either  side  of  the  middle  of  the  channel  belong  to 
the  state  which  owns  that  side.  If  they  arise  in  the  central 
channel  itself,  they  are  divided  between  the  two  states  by 
a line  drawn  across  or  along  them  in  continuation  of  the  line 
drawn  down  the  middle  of  the  channel.  But  if  a convulsion 
of  nature  alters  altogether  the  bed  of  a boundary  river  or  lake, 
the  line  of  demarkation  does  not  follow  the  new  bed  of  the 
stream,  but  runs  along  the  bottom  of  the  old  deserted  channel. 
There  are  provisions  for  exceptions  to  these  rules  when,  in- 
stead of  the  river  itself  being  the  boundary,  a fixed  line  is 
drawn  which  happens  to  touch  the  river  and  run  along  it ; but 
the  whole  subject  is  so  far  removed  from  the  practical  every- 
day life  of  states,  and  cases  in  point  are  so  seldom  likely  to 
occur,  that  it  does  not  seem  desirable  to  occupy  space  by 
pursuing  the  matter  into  further  detail. 

§ ioi. 

We  now  pass  on  to  consider  the  different  degrees  of  power 
exercised  by  states  over  territory  which  is  to  a greater  or  less 
a state  may  extent  under  their  authority  or  influence.  It  is 

exercise  power  . 

over  territory  as  necessary  to  deal  with  this  matter  because,  in 
(a)  a part  of  its  # 17  ... 

dominions.  quite  recent  times  some  of  the  leading  maritime 
and  colonizing  states  have  begun  to  reserve  for  themselves 
1 Justinian,  Institutes,  II.,  i.,  20-24,  and  Digest , XLI.,  i.,  7,  29,  65. 


CONNECTED  WITH  PROPERTY. 


161 


territories  over  which  they  do  not  for  the  present  exercise  full 
rights  of  sovereignty ; and  in  consequence,  questions  have 
arisen  as  to  the  exact  nature  and  limits  of  the  powers  pos- 
sessed by  them  over  such  territories.  The  desire  to  partition 
Africa,  and  the  transactions  that  have  taken  place  in  order  to 
secure  its  peaceful  gi-atification,  have  forced  these  questions  to 
the  front,  if  they  have  not  created  the  problems  that  are  now 
awaiting  solution  with  regard  to  them.  Modern  Interna- 
tional Law  was  familiar  with  sovereignty,  and  it  knew  of 
suzerainty,  though  rather  as  a relation  between  governments 
than  as  a power  over  territory.  The  few  protectorates  of 
which  it  was  cognizant  afforded  little  scope  for  the  develop- 
ment of  international  difficulties.  Now,  however,  all  is 
changed.  Within  the  last  few  years  protectorates  have 
sprung  up  in  Africa  with  the  rapidity  of  tropical  vegetation, 
and  questions  connected  with  the  responsibilities  and  mutual 
duties  of  the  protecting  powers  have  sprung  up  with  them.  The 
creation  of  spheres  of  influence  has  gone  on  apace ; but  the 
name  and  the  thing  signified  by  it  are  so  new,  that  jurists 
have  not  yet  come  to  an  agreement  as  to  its  exact  meaning. 
In  fact,  a new  chapter  is  being  added  to  International  Law ; 
and  in  the  remarks  that  follow  we  can  do  little  more  than 
indicate  the  direction  taken  by  opinion  and  practice  with  re- 
gard to  the  matters  in  question. 

There  can  be  no  doubt  or  difficulty  in  respect  of  the  terri- 
tory over  which  a state  exercises  authority  as  a part  of  its 
dominions.  Whether  such  territory  has  been  possessed  from 
time  immemorial  or  acquired  but  yesterday,  whether  it  is  full 
of  evidences  of  the  most  advanced  civilization  or  covered  by 
forest  and  wilderness,  whether  the  bulk  of  its  people  are  culti- 
vated and  polite  or  rude  and  barbarous,  the  powers  exercised 
over  it,  and  all  who  dwell  upon  it,  are  those  of  full  sovereignty. 
The  state  which  owns  it,  controls  entirely  and  exclusively 
both  its  internal  and  its  external  affairs,  except  in  those  few 
cases  where,  as  we  have  seen  before,1  some  of  the  powers  of 
1 See  §§  48-50  and  71-73. 

M 


162 


RIGHTS  AND  OBLIGATIONS 


external  sovereignty  are  temporarily  or  permanently  impaired. 
Its  rights  and  obligations  are  defined  by  the  common  law  of 
nations,  and  may  be  known  by  those  who  take  the  trouble 
to  inquire. 

§102. 

With  regard  to  protectorates  there  is  much  more  complexity. 
They  have  lately  been  proclaimed  in  abundance  over  terri- 
a state  may  tories  occupied  by  savage  or  semi-barbarous 
over°territoiy *88  tribes.  Generally  the  inhabitants  have  some 

a protectorate.  p0]_iticai  organization  of  their  own,  capable  of 

performing  the  rudimentary  functions  of  government.  In 
that  case  the  protecting  power  exercises  full  control  over  all 
external  affairs,  and  leaves  internal  matters  in  a greater  or 
less  degree  to  the  native  administration.  But,  as  Hall  well 
points  out,1  its  exercise  of  the  powers  of  external  sovereignty 
involves  it  in  responsibilities  to  other  civilized  states.  If  any 
wrongs  are  committed  upon  their  subjects  by  the  people  of 
the  protectorate,  they  must  not  seek  redress  direct  from  the 
native  rulers  or  exact  it  by  force ; but  it  is  their  duty  to 
apply  to  the  government  of  the  protecting  state.  That 
government  must,  therefore,  have  some  authority  in  internal 
matters,  sufficient  at  the  least  to  enable  it  to  protect  the 
subjects  of  other  civilized  powers  from  wanton  injury  to  per- 
sons or  property.  It  is  true,  that  the  West  African  Conference 
of  1884-1885  declined  to  extend  to  protectorates  the  obliga- 
tion to  keep  reasonable  order  within  the  territory  which  it 
imposed  upon  its  members  in  respect  of  their  future  occupations 
on  the  coast  of  Africa.2  But  the  hard  facts  of  international 
intercourse  cannot  be  altered  by  protocols  ; and  it  is  as  certain 
as  anything  can  be  that  if,  for  instance,  a German  subject 
were  injured  and  despoiled  in  the  British  protectorate  of 
Zanzibar,  Germany  would  apply  to  Great  Britain  for  redress. 
Indeed  one  of  the  first  acts  performed  by  Great  Britain,  when 

1 International  Law , § 38*. 

2 British  State  Papers,  Africa,  No.  4 (1885),  pp.  215,  312. 


CONNECTED  WITH  PROPERTY. 


163 


she  acquired  a protectorate  over  the  neighboring  territory  of 
Witu,  in  consequence  of  her  agreement  with  Germany  in  the 
summer  of  1890, 1 was  to  send  a ship  of  war  to  bombard  the 
place  in  chastisement  for  an  attack  on  a German  trading 
party  and  the  slaughter  of  some  of  its  members.  Moreover, 
it  sometimes  happens  that  a civilized  state,  partly  from  the 
desire  of  acquiring  full  authority  and  partly  from  a laudable 
wish  to  educate  the  natives  in  civilization,  takes  care  to  obtain 
the  right  to  exercise  very  considerable  powers  of  internal 
sovereignty  within  a territory  it  receives  under  its  protecto- 
rate. Thus  Great  Britain  levies  a hut-tax  in  Zululand,  and 
provides  for  the  administration  of  justice,  and  she  patrols  the 
protected  portion  of  Bechuanaland  by  a force  of  border  police.2 
These  instances  show  that  it  is  impossible  to  define  a protecto- 
rate as  a political  arrangement,  whereby  the  powers  of  external 
sovereignty  are  assumed  by  the  protecting  state,  while  the 
protected  community  retains  the  powers  of  internal  sover- 
eignty. There  may  be  a few  protectorates  of  which  this 
account  is  true,  though  it  is  difficult  to  see  how  the  separation 
of  the  functions  of  government  into  two  well-defined  classes 
can  be  made  compatible  with  the  responsibilities  of  the  pro- 
tecting power  to  other  states.  But  in  the  great  majority  of 
cases  domestic  affairs  are  placed  to  some  extent  under  the 
control  of  the  authority  which  deals  with  external  relations. 
How  far  that  control  shall  extend,  and  how  much  power 
should  be  left  in  the  hands  of  the  native  governments,  are 
matters  which  vary  from  instance  to  instance  and  from  time 
to  time.  The  protecting  state  requires  of  other  members  of 
the  family  of  nations  abstention  from  any  direct  political 
dealings  with  the  inhabitants  of  the  protectorate,  and  holds 
them  bound  not  to  make  any  attempt  to  acquire  the  protected 
territory.  On  the  other  hand,  it  is  under  an  obligation  to  re- 
strain those  whom  it  protects  from  committing  injuries  upon 
the  subjects  of  other  states  or  performing  hostile  acts  against 

1 British  State  Papers,  Africa,  No.  6 (1890),  p.  10. 

2 Statesman's  Year  Book  (1894),  pp.  168,  202. 


164 


EIGHTS  AND  OBLIGATIONS 


neighboring  peoples  ; and  for  these  purposes  it  must  have 
larger  powers  of  control  than  are  contained  in  the  manage- 
ment of  foreign  relations.  It  may  use  the  native  authorities, 
or  it  may  employ  agents  of  its  own ; but  it  must  in  some  way 
obtain  the  means  necessary  for  the  fulfilment  of  its  interna- 
tional obligations.  At  present  it  is  almost  impossible  to  say 
with  certainty  how  far  they  extend.  It  is  tolerably  clear,, 
that  if  a state  were  involved  in  war,  its  protectorates  would 
be  liable  to  attack  from  its  foes,  in  the  absence  of  any  special 
agreement  to  the  contrary,  such  as  those  contemplated  by  the 
Eleventh  Article  of  the  Final  Act  of  the  West  African  Con- 
ference, which  bound  the  contracting  parties  to  use  their  good 
offices,  in  order  that  territories  and  protectorates  comprised  in 
the  free-trade  zone  created  by  the  Act,  should  be  exempt  from 
warlike  operations  when  the  powers  exercising  the  rights  of 
sovereignty  or  protection  over  them  were  engaged  in  hos- 
tilities.1 It  is  hardly  too  much  to  say  that  there  is  a tendency 
to  regard  the  peoples  of  protected  districts  as  subjects  of  the 
protecting  state  for  international  purposes  ; but  time  alone  can 
show  whether  a rule  to  this  effect  will  be  embodied  in  Inter- 
national Law.  Should  it  be  adopted,  a protectorate  would 
for  international  purposes  differ  in  no  respect  from  an  ordi- 
nary province  or  colony. 

§103. 


A sphere  of  influence  is  a new  thing  in  formal  international 
relations.  The  phrase  was  not  heard  of  till  a few  years  ago, 
A state  may  and  it  can  hardl}r  be  said  to  possess  a clear  and 

exercise  power  , , . , , . , 

over  territory  as  generally  recognized  technical  meaning  even 

(c)  a sphere  of  i t 

influence.  yet.  JN  evertheless,  the  tacts  it  denotes  are  not 

so  difficult  to  understand  as  those  we  have  attempted  to  ana- 
lyze in  our  explanation  of  the  meaning  of  a protectorate. 
Over  territory  included  in  the  sphere  of  influence  of  a state 
it  does  not  necessarily  exercise  any  direct  control,  either  in 
external  or  in  internal  affairs ; but  it  claims  that  other  states 


1 British  State  Papers,  Africa , No.  4 (1885),  p.  307. 


CONNECTED  WITH  PROPERTY. 


165 


shall  not  acquire  dominion  or  establish  protectorates  therein, 
whereas  it  is  free  to  do  so  if  it  chooses.  The  territories  actu- 
ally reserved  up  to  the  present  as  spheres  of  influence  are,  in 
the  main,  unoccupied ; but  they  contain  many  settlements 
made  by  traders  and  missionaries,  several  protectorates,  and 
a few  districts  already  annexed  to  the  dominions  of  the  state 
in  whose  sphere  they  are  placed.  With  regard  to  these  last 
and  to  the  protectorates,  the  exclusive  rights  of  the  possessory 
or  protecting  power  exist  independently  of  any  agreement  as 
to  the  area  within  which  it  may  operate  without  hindrance. 
They  rest  upon  the  common  law  of  nations,  and  are  not  made 
stronger  by  treaty  stipulations.  But  the  rest  of  the  areas  con- 
tained in  modern  spheres  of  influence  are  reserved  by  agree- 
ment, and  by  agreement  only.  When  Great  Britain  and  Ger- 
many covenanted  with  each  other,  that  “ one  power  will  not 
in  the  sphere  of  the  other  make  acquisitions,  conclude  treaties, 
accept  sovereign  rights  or  protectorates,  nor  hinder  the  exten- 
sion of  influence  of  the  other,”  1 each  contracted  itself  out  of 
its  common  law  right  of  occupying  any  unappropriated  and 
uncivilized  territory  it  desired  to  take,  and  received  in  return 
the  assurance  that  within  the  limits  assigned  to  it  the  ex- 
pansive activity  of  the  other  would  not  be  exercised.  Such 
an  agreement  cannot  bind  the  civilized  world  unless  it  is 
specially  recognized  by  the  other  members  of  the  family  of 
nations.  Its  immediate  legal  effect  is  confined  to  the  powers 
which  signed  it.  It  is,  however,  hardly  likely  that  any  govern- 
ment would  venture  to  risk  the  certain  hostility  of  one,  and 
perhaps  both  of  them,  by  attempting  to  extend  its  dominions 
within  the  sphere  of  either.  Should  war  break  out  on  other 
grounds,  doubtless  a belligerent  would  strike  at  its  adversary, 
there  as  well  as  elsewhere,  if  opportunity  offered ; but  there 
is  little  fear  that  the  territories  reserved  to  one  another  in 
Africa  by  Great  Britain,  Germany,  France,  Italy  and  Portugal 
will  be  the  cause  of  war  in  the  immediate  future.  Each  power 
will  have  enough  to  do  for  many  years,  if  it  attempts  to  reduce 
1 British  State  Papers,  Africa , No.  6 {1890),  p.  8. 


166 


RIGHTS  AND  OBLIGATIONS 


into  effective  possession  the  vast  tracts  assigned  to  it.  Often 
the  first  step  in  the  process  of  acquisition  is  the  establishment 
of  a protectorate.  This  being  accomplished,  the  authority  of 
the  protecting  power  over  the  protected  district  tends  con- 
stantly to  increase,  till  at  last  nothing  but  the  shadow  of 
internal  sovereignty  is  left  to  the  native  rulers.  When  such 
a point  is  reached,  annexation  cannot  be  far  off ; and  as  soon 
as  it  takes  place  the  territory  has  become  part  of  the  colonial 
dominions  of  the  annexing  country.  Protectorates  over 
savage  or  semi-barbarous  races  are,  as  a rule,  but  temporary 
resting-places  on  the  road  to  complete  incorporation. 


104. 


Chartered 
companies  and 
spheres  of 
influence. 


Great  Britain  and  Germany  have  adopted  the  policy  of 
allowing  chartered  companies  to  do  pioneer  work  in  territories 
which  they  have  not  taken  by  occupation,  but 
which  have  been  included  in  their  spheres  of 
influence.  Often  the  chartered  company  began 
its  work  before  the  diplomatists  stepped  in  to  delimit  the  ter- 
ritories reserved  for  their  respective  countries.  We  have 
already  endeavored  to  fix  the  position  of  these  companies  in 
International  Law.1  It  will  be  sufficient  to  add  here  that 
the  control  exercised  over  them  by  the  mother-country  can 
hardly  be  very  real  or  very  continuous  ; and  that  in  her 
effort  to  escape  responsibility  by  throwing  it  upon  the  shoul- 
ders of  an  association,  she  may  often  involve  herself  in  trans- 
actions more  dubious  in  character  and  more  burdensome  in 
execution  than  would  have  been  possible  had  her  control  been 
direct.  For  instance,  when  in  1889  the  natives  of  the  German 
sphere  of  influence  in  East  Africa  rose  and  attacked  the 
stations  of  the  German  East  Africa  Company,  the  Imperial 
Government  sent  ships  and  men  to  assist  in  putting  down  the 
outbreak.2  It  would  have  been  impossible  for  it  to  have 
looked  calmly  on,  while  its  subjects  were  being  slaughtered 
by  the  natives ; yet,  had  the  administration  of  the  district 
1 See  § 54.  2 Annual  Register  ( 1889 ),  pp.  301-304. 


CONNECTED  WITH  PROPERTY. 


167 


been  in  its  hands,  it  should  probably  have  avoided  the  high- 
handed measures  on  the  part  of  the  company’s  agents  which 
were  largely  responsible  for  the  rising.  The  recent  history 
of  the  native  Kingdom  of  Uganda,  in  British  East  Africa,  is 
another  case  in  point.  Under  the  regime  of  the  British  East 
Africa  Company  passions,  political  and  religious,  seem  to  have 
been  aroused,  which  it  proved  entirely  unable  to  restrain. 
The  British  Government  has  been  obliged  to  send  agents  of 
its  own  into  the  country,  and  assume  a large  control  over 
its  affairs  in  order  to  restore  peace,1  and  in  April,  1894,  it 
resolved  to  establish  a protectorate.  Responsibilities  it  did 
not  seek,  but  wished  to  avoid,  have  been  thrust  upon  it.  Its 
hands  have  been  forced,  and  forced  in  consequence  of  the 
very  device  which  was  to  extend  the  trade  and  influence  of 
England  without  involving  it  in  state  efforts  and  state  obliga- 
tions. It  is  impossible  for  a government  to  grant  to  associa- 
tions of  its  subjects  powers  which  are  hardly  distinguishable 
from  those  of  sovereignty,  without  sooner  or  later  becoming 
involved  in  their  proceedings,  as  in  1893  the  British  Govern- 
ment became  involved,  much  against  its  will,  in  the  war 
waged  by  the  British  South  Africa  Company  against  the  Mata- 
bele  and  their  chief,  Lobengula.2  There  is  doubtless  much 
fascination  in  the  idea  of  opening  up  new  territories  to  the  com- 
mercial and  political  influence  of  a country,  and  at  the  same 
time  adding  nothing  to  its  financial  burdens  or  international 
obligations.  But  experience  shows  that  the  glamour  soon 
wears  off,  and  the  state  which  seeks  to  obtain  power  without 
responsibility  obtains  instead  responsibility  without  power.3 

§ 105. 

We  must  now  turn  our  attention  to  territorial  rights  over 

1 Annual  Begister  (1892),  pp.  342-345. 

2 Statesman' s Tear  Book  for  1894,  p.  195. 

3 The  argument  in  the  text  has  been  greatly  strengthened  by  events  which 
have  taken  place  since  it  was  written.  The  lawless  and  unauthorized  raid 
of  a portion  of  the  forces  of  the  British  South  Africa  Company  into  the  terri- 
tory of  the  Transvaal  Republic  in  December,  1895,  has  involved  the  British 
Government  in  a maze  of  colonial  and  international  complications  from  which 
it  has  not  yet  (November,  1897)  emerged. 


168 


RIGHTS  AND  OBLIGATIONS 


waters,  and  the  claims  of  states  to  exercise  sovereign  author- 
ity in  connection  therewith.  It  was  impossible  to  deal  with 
these  questions  when  we  were  discussing  the  limits  of  terri- 
torial possession ; and  they  were  reserved  for  consideration 
rights  over  waters  after  we  had  investigated  the  subject  of  inter- 
national title.  The  interest  of  some  of  them  is 
chiefly  historical,  while  others  are  matters  of  im- 
portance in  our  own  day.  We  shall,  however,  be  better  pre- 
pared to  grapple  with  the  latter  if  we  have  some  knowledge 
of  the  former. 

We  will  take  first  the  subject  of 

Claims  to  sovereignty  over  the  high  seas. 


(1 ) Claims  to 
sovereignty  over 
the  high  seas. 


Originally  the  sea  was  perfectly  free,  though,  as  Sir  Henry 
Maine  justly  says,  it  was  common  to  all  “only  in  the  sense 
of  being  universally  open  to  depredation.”  1 In  Roman  Law 
it  was  one  of  those  res  communes  that  were  incapable  of 
occupation.2  But  in  the  Middle  Ages  the  maritime  powers  of 
Europe  claimed  to  exercise  territorial  sovereignty  over  those 
portions  of  the  high  seas  which  were  adjacent  to  their  land 
territory  or  otherwise  in  some  degree  under  their  control. 
Thus  Venice  claimed  the  Adriatic,  Denmark  and  Sweden 
declared  that  they  held  the  Baltic  in  joint  sovereignty,  and 
England  asserted  a claim  to  dominion  over  the  seas  which  sur- 
round her  shores  from  Stadland  in  Norway  to  Cape  Finisterre 
in  Spain,  and  even  as  far  as  the  coast  of  America  and  the 
unknown  regions  of  the  North.3  Denmark  put  in  a counter- 
claim to  the  Arctic  seas,  and  especially  to  a large  zone  round 
Iceland  where  there  were  valuable  fisheries.  These  claims, 
monstrous  as  they  seem  to  us,  were  by  no  means  an  unmixed 
evil  in  mediseval  times,  when  piracy  was  a flourishing  trade, 
and  pirate  vessels  were  strong  enough  to  insult  the  coasts  of 
civilized  powers  and  make  captures  in  their  harbors.  The 
state  which  claimed  to  possess  a sea  was  held  bound  to 
“keep”  it, — that  is,  to  perform  police  duties  within  it,  — and 

1 International  Law,  p.  76.  2 Justinian,  Institutes , II.,  i.,  1. 

3 Selden,  Mare  Clausum , II.,  i. 


CONNECTED  WITH  PROPERTY. 


169 


this  obligation  was  fulfilled  with  more  or  less  completeness  by 
England  and  other  maritime  powers.  Moreover,  the  claim 
to  dominion  was  not  deemed  to  carry  with  it  a right  to 
exclude  the  vessels  of  other  nations  from  the  waters  in 
question.  Tolls  were  often  levied  to  provide  the  funds  for 
putting  down  piracy  and  keeping  the  peace  of  the  seas,  and 
licenses  to  fish  were  given  to  foreigners  on  consideration  of 
a money  payment.  In  fact,  no  serious  grievance  appears  to 
have  been  felt  till  after  the  discovery  of  America.  That 
event  gave  a great  impetus  to  trade  and  navigation,  and  at 
the  same  time  excited  a strong  desire  on  the  part  of  the 
Spaniards  to  be  the  sole  possessors  of  the  wealth  of  the  New 
World.  Accordingly,  they  not  only  claimed  the  Pacific  Ocean 
as  their  own  by  right  of  discovery,  but  also  strove  to  exclude 
from  it  the  vessels  of  other  powers.  About  the  same  time 
Portugal  adopted  a similar  policy  with  regard  to  the  Indian 
Ocean  and  the  newly  discovered  route  round  the  Cape  of 
Good  Hope.  The  other  maritime  nations  set  at  naught  these 
preposterous  claims.  French  and  English  explorers  traded, 
fought  and  colonized  in  America  with  scant  respect  for  the 
so-called  rights  of  Spain,  and  Holland  sent  her  fleets  to  the 
Spice  Islands  of  the  East  without  troubling  to  ask  leave  and 
license  of  Portugal.  The  rulers  and  jurists  of  these  aggres- 
sive nations  sought  a theoretical  justification  of  their  acts  in 
the  new  doctrine,  or  rather  the  old  doctrine  revived,  that  the 
sea  was  incapable  of  appropriation.  Elizabeth  of  England 
told  the  Spanish  Ambassador  at  her  Court  that  no  people 
could  acquire  a title  to  the  ocean,  but  its  use  was  common  to 
all.  Grotius  of  Holland  published  a learned  argument  in 
favor  of  its  freedom  in  1609.  His  book  was  entitled  Mare 
Apertum , and  in  it  he  elaborated  the  old  principle  of  Roman 
Law,  that  the  sea  was  incapable  of  occupation.  He  afterwards 
modified  his  views  so  far  as  to  allow  that  gulfs  and  marginal 
waters  might  be  reduced  into  ownership  as  attendant  upon 
the  land ; 1 and  in  this  latter  form  the  principle  of  the  freedom 
1 De  Juri  Belli  ac  Pads , II.,  iii.,  8. 


170 


RIGHTS  AND  OBLIGATIONS 


of  the  seas  from  territorial  sovereignty  became  one  of  the 
fundamental  doctrines  of  modern  International  Law.  Selden 
in  his  Mare  Clausum , published  in  1635,  supported  the  claim 
of  England  to  dominion  over  the  northern  seas,  but  rather 
on  the  ground  of  immemorial  prescription  than  on  general 
principles.  Even  then  the  enforcement  of  such  claims  was 
against  the  spirit  of  the  age,  and  they  began  to  dwindle  from 
the  middle  of  the  seventeenth  century.  For  more  than 
a hundred  years  after  Great  Britain  had  ceased  to  exercise 
any  real  powers  of  sovereignty  over  the  seas  she  still  called 
her  own,  she  claimed  within  their  limits  ceremonial  honors 
to  her  flag;  and  till  quite  recent  times  Denmark  endeavored 
to  reserve  a large  area  round  the  coast  of  Iceland  for  the 
exclusive  use  of  her  fishermen.  But  the  British  demand 
for  salutes  and  the  lowering  of  the  flag  has  been  tacitly 
dropped  for  generations,  and  Denmark,  after  various  con- 
cessions, gave  up  the  struggle  in  1872  and  fell  back  on  the 
three-mile  limit  allowed  by  International  Law.1 

§106. 

The  last  attempt  to  enforce  exclusive  claims  over  a portion 
of  the  open  ocean  was  made  by  the  United  States  in  the 
Eights  over  waters,  controversy  with  Great  Britain  which  terminated 
daimto prohibit’1  in  the  Bering  Sea  arbitration  of  1893.  In  the 

seal-fishing  in  -i  1 ° -r-i  a,  i r ct-» 

Bering  sea.  year  1821  the  Emperor  Alexander  I.  of  Russia 
issued  an  ukase,  prohibiting  all  foreign  vessels  from  ap- 
proaching within  less  than  a hundred  Italian  miles  of  the 
coasts  and  islands  belonging  to  Russian  America.  This  pro- 
ceeding was  justified  on  the  ground  that  Russia  had  a right 
to  claim  the  Pacific  north  of  latitude  51°  as  a mare  clausum , 
on  the  ground  of  first  discovery  and  the  possession  of  both  its 
shores.  Great  Britain  and  the  United  States  at  once  protested 
against  the  ukase  and  the  claims  on  which  it  was  founded, 
the  American  Secretary  of  State,  Mr.  John  Quincy  Adams, 
1 Hall,  International  Law , § 40,  note. 


CONNECTED  WITH  PROPERTY.  171 

pointing  out  that  the  distance  across  the  Pacific  from  shore 
to  shore  along  the  51st  parallel  of  north  latitude  was  no  less 
than  4000  miles.  He  declared  that  the  United  States  could 
not  admit  the  existence  of  an  “exclusive  territorial  jurisdic- 
tion ” over  these  waters  on  the  part  of  Russia,  and  that  they 
would  “ maintain  the  right  of  their  citizens  ...  of  free  trade 
with  the  original  nations  of  the  northwest  coast  throughout 
its  whole  extent.” 1 He  claimed  for  them  freedom  from 
molestation  “beyond  the  ordinary  distance  to  which  the  ter- 
ritorial jurisdiction  extends.” 2 The  Russian  Government 
yielded  to  the  remonstrance  of  the  two  great  commercial 
powers,  and  signed  a convention  with  the  United  States  in 
1824 3 and  with  Great  Britain  in  the  following  year.4  The 
terms  of  these  instruments  were  almost  identical.  They  con- 
ceded to  citizens  and  subjects  of  both  powers  the  right  to 
navigate  and  fish  without  molestation  in  the  waters  closed  to 
them  by  the  ukase  of  1821,  and  to  resort  to  places  on  the 
coast  where  there  was  no  Russian  settlement  for  the  purpose 
of  trading  with  the  natives.  Some  temporary  provisions  in 
the  American  treaty  with  regard  “ to  gulfs,  harbors,  and 
creeks  ” were  differently  interpreted  by  the  two  powers,  and 
were  not  renewed ; but  the  main  stipulations  remained  in 
force  till  the  United  States  acquired  the  whole  of  Russian 
America  by  purchase  in  1867.  A rapid  development  of  the 
country  then  begun,  and  among  other  enterprises  the  seal- 
fisheries  were  taken  in  hand  with  a view  to  their  improve- 
ment. In  1870  a monopoly  of  the  Pribyloff  seal-rookeries 
was  given  by  the  American  Government  to  the  Alaska  Com- 
mercial Company,5  on  condition  that  it  paid  certain  sums 
annually  to  the  United  States  Treasury,  and  killed  no  seals 
except  on  the  islands,  and  not  more  than  100,000  a year  even 

1 Treaties  of  the  United  States,  p.  1379. 

2 British  and  Foreign  State  Papers,  IX.,  483. 

3 Treaties  of  the  United  States,  p.  931. 

4 Wheaton,  International  Law , § 170. 

6 Wharton,  International  Law  of  the  United  States,  II.,  272. 


172 


BIGHTS  AND  OBLIGATIONS 


there.  The  sealing  industry  soon  became  exceedingly  lucra- 
tive, and  vessels  from  the  maritime  provinces  of  the 
Dominion  of  Canada  were  attracted  to  it.  • Their  crews,  not 
being  bound  by  the  restraints  imposed  by  the  law  of  the 
United  States  upon  American  citizens,  killed  the  seals 
wherever  they  could  find  them  outside  the  ordinary  limits 
of  territorial  waters.  The  American  sealers  complained 
and  protested ; and  in  1886  three  schooners  belonging  to 
Victoria,  British  Columbia,  were  seized  while  fishing  about 
seventy  miles  from  land,  and  taken  before  the  District  Court 
of  Sitka  for  trial  on  a charge  of  infringing  the  law  which 
forbade  the  killing  of  fur-seals  within  the  limits  of  Alaska  and 
its  waters,  except  under  authorization  from  the  Secretary  of 
the  United  States  Treasury.  The  judge  who  tried  the  case 
laid  down  in  his  charge  to  the  jury  that  the  territorial  waters 
of  Alaska  included  the  whole  of  the  vast  area — 1500  miles 
in  width  and  700  miles  in  depth  — bounded  by  the  limits 
mentioned  in  the  treaty  of  cession  of  1867  as  those  “ within 
which  the  territories  and  dominions  conveyed  are  contained.”  1 
Thus  directed,  the  jury  found  the  prisoners  guilty,  and  the 
penalties  of  imprisonment  for  themselves  and  confiscation  for 
their  vessels  and  cargoes  were  enforced  against  them.  Great 
Britain  at  once  remonstrated.  The  seizure  of  other  vessels 
elevated  the  difficulty  to  the  rank  of  a great  international 
controversy,  which  was  carried  on  for  several  years  and 
threatened  more  than  once  to  disturb  the  peaceful  relations 
between  the  two  countries.  Happily,  however,  it  was  referred 
to  the  arbitration  of  a board  of  seven  jurists,  two  being 
appointed  by  each  of  the  parties  to  the  controversy,  one  by 
the  President  of  the  French  Republic,  one  by  the  King  of 
Italy,  and  one  by  the  King  of  Sweden  and  Norway.2  The 
award  of  this  tribunal  was  given  at  Paris,  on  August  the  15th, 

1 Treaties  of  the  United  States , p.  940 ; British  State  Papers,  Correspondence 
respecting  the  Behring  Sea  Seal-fisheries,  1886-1890,  p.  2. 

2 Message  of  President  Harrison  transmitting  Treaty  of  Arbitration  oj 
February  9,  1892,  to  the  Senate,  March  8,  1892. 


CONNECTED  WITH  PROPERTY. 


173 


1893.  The  arbitrators  found  for  Great  Britain  on  all  the 
points  of  International  Law  in  dispute.1  They  agreed  that 
by  the  treaty  of  1867  Russia  ceded  to  the  United  States  all 
her  rights  within  the  boundaries  therein  defined ; but  they 
held  that  the  jurisdiction  over  enormous  tracts  of  open  ocean 
claimed  by  Alexander  I.  in  1821  was  not  among  those  rights. 
International  Law  never  gave  it  to  Russia,  and  she  could  not 
cede  what  she  did  not  possess.  Accordingly,  the  territorial 
rights  of  the  United  States  in  the  waters  of  Alaska  were 
limited  to  its  bays  and  gulfs  and  the  marine  league  along  its 
shores.  .They  had  no  property  in  the  fur-seals  when  found 
outside  these  limits,  and  no  power  to  protect  them  from 
seizure  on  the  high  seas  by  the  citizens  of  other  countries. 
At  the  same  time,  the  tribunal  recognized  the  force  of  the 
American  contention,  that  it  was  necessary  to  put  the  fishery 
under  regulations  in  order  to  preserve  the  seal-herd  from 
grievous  diminution,  if  not  utter  destruction.  The  treaty  of 
reference  gave  the  arbitrators  power  to  devise  such  regula- 
tions, in  case  they  declared  Bering  Sea  open  to  the  fishing- 
vessels  of  all  nations.  They  exercised  this  power,  and  drew 
up  an  elaborate  code,  which  established  a close  time  for  seals, 
forbade  their  capture  within  sixty  miles  of  the  Pribyloff 
Islands,  decreed  that  only  sailing  vessels  should  engage  in 
the  fishery,  and  laid  down  many  other  rules  which  the  two 
powers  brought  into  effect  by  means  of  domestic  legislation 
in  1894. 

It  can  hardly  be  doubted  that  the  decision  of  the  arbitrators 
was  good  in  International  Law.  The  claim  to  exercise  rights 
of  sovereignty  over  Bering  Sea  was  contrary  to  principles 
which  had  been  asserted  by  no  power  more  vigorously  than 
the  United  States  ; 2 and  it  was  extremely  difficult  to  reconcile 
the  action  of  its  Government  towards  the  British  sealers  with 

1 Award  of  Arbitrators  in  the  London  “ Times  ” of  August  16,  1893,  and 
other  London  and  New  York  newspapers. 

2 Wheaton,  International  Law  (Dana’s  ed.),  p.  260,  note  108;  Wharton, 
International  Law  of  the  United  States,  I.,  105. 


174 


RIGHTS  AND  OBLIGATIONS 


the  attitude  assumed  by  Mr.  Adams  in  the  controversy  with 
Russia  provoked  by  the  ukase  of  1821. 1 The  contention  that 
the  seals  are  semi-domestic  animals,  and  as  such  the  property 
of  the  United  States,  will  hardly  bear  investigation.  They 
are  wild  creatures  whom  each  may  catch  on  his  own  territory 
or  in  localities  belonging  to  no  one.  The  United  States  can 
claim  no  rights  over  them  after  they  have  left  its  waters ; 
for  they  are  then  as  much  beyond  its  authority  as  are  the  big 
game  of  the  northwest  plains  when  they  have  wandered 
across  the  border  into  Canadian  territory.  The  assertion  that 
the  destruction  of  the  seals  at  sea  is  immoral,  was  an  ex- 
aggerated statement  of  the  principle  that  to  destroy  a useful 
animal  is  detrimental  to  the  welfare  of  the  human  race.  The 
experts  differed  widely  as  to  the  effect  of  the  sea-fishing  upon 
the  numbers  of  the  seals ; but  even  had  the  evidence  in  favor 
of  its  disastrous  consequences  been  stronger  than  it  was,  the 
United  States  would  not  have  been  justified  by  it  in  assum- 
ing a right  to  make  their  ideas  of  proper  regulation  the  law 
of  the  civilized  world.  They  could  legislate  for  their  own 
citizens  in  their  own  vessels  on  the  high  seas,  not  for  the 
citizens  of  other  states  lawfully  navigating  the  ships  of  those 
states.2  But  undoubtedly  they  had  a strong  moral  claim  on 
foreign  nations  for  a mutual  agreement,  which  should  put  an 
end  to  all  danger  of  the  extermination  of  the  seals.  As  a 
result  of  the  arbitration  they  have  obtained  such  an  agreement 
beween  themselves  and  Great  Britain ; and,  if  it  works  well,3 
we  may  hope  that  it  will  be  brought,  as  the  treaty  directs,  to 
the  notice  of  other  maritime  powers  whose  subjects  are  likely 
to  engage  in  the  fishery,  and  receive  general  assent.  The 
creation  of  what  has  been  well  called  “ an  International  Game 
Law”  is  the  true  solution  of  the  difficulty.  This,  and  the 

1 Wheaton,  International  Law,  § 168 ; Wharton,  International  Law  of 
the  United  States,  II.,  270,  271. 

2 British  State  Papers,  Correspondence  respecting  the  Behring  Sea  Fish- 
eries, 1886-1890,  pp.  398,  462;  Hon.  E.  J.  Phelps,  article  in  Hamper's 
Magazine  for  April,  1891. 

3 Unfortunately  it  has  not  worked  well.  The  two  countries  are  now  (1897) 
in  hot  dispute  as  to  the  alleged  extermination  of  the  seals  by  pelagic  sealing. 


CONNECTED  WITH  PROPERTY. 


175 


final  and  decisive  assertion  of  the  freedom  of  the  high  seas, 
are  likely  to  be  the  permanent  results  of  the  arbitration. 

§ 107. 

Claims  to  dominion  over  whole  seas  may  be  said  to  have 
vanished  altogether  from  International  Law.  But  in  the 
process  of  departure  they  left  behind  them  Eights  over 

. , , . » , . . . . waters.  (3)  Claims 

a number  of  assertions  ot  territorial  power  over  to  jurisdiction 

beyond  the  marine 

considerable  stretches  ot  water  along  the  coasts  league, 
of  maritime  states ; and  it  is  doubtful  how  far  some  of  these 
are  alive  to-day.  Great  Britain  has  never  in  recent  times 
attempted  to  exercise  the  rights  of  sovereignty  over  the 
“King’s  Chambers”  ; 1 and  though  Chancellor  Kent  declared 
in  favor  of  the  “justice  and  policy”  of  her  claim  to  “su- 
premacy over  the  narrow  seas  adjacent  to  the  British  Isles,” 
and  referred  with  approval  to  similar  claims  made  early  in  the 
nineteenth  century  by  American  statesmen,  including  as  they 
did  an  assertion  of  the  right  to  prohibit  naval  warfare  between 
the  Gulf  Stream  and  the  Atlantic  Shore,  or  at  least  within 
a line  drawn  from  headland  to  headland  and  along  the  open 
coast  for  four  leagues  out  to  sea,2  it  may  well  be  questioned 
whether  any  attempt  would  now  be  made  to  enforce  these 
views.  Indeed,  the  general  policy  of  the  United  States  has 
tended  emphatically  towards  the  curtailment  of  such  claims, 
and  is  well  set  forth  in  a despatch  from  Mr.  Fish,  when  Secretary 
of  State  in- 1875,  to  Sir  Edward  Thornton,  then  British  Minis- 
ter at  Washington.  In  it  he  says  : “We  have  always  under- 
stood and  asserted  that,  pursuant  to  public  law,  no  nation  can 
rightfully  claim  jurisdiction  beyond  a marine  league  from  its 
coast.”  3 The  opinion  of  the  civilized  world  sets  strongly  in 
this  direction ; and  we  may  consider  the  few  cases  in  which 
claims  to  large  bays  and  broad  waterways  are  still  allowed  as 
survivals  of  an  older  order. 

1 See  § 91. 

2 Commentaries  on  International  Law  (Abdy’s  ed.),  113,  114. 

3 Wharton,  International  Law  of  the  United  States,  I.,  105. 


176 


RIGHTS  AND  OBLIGATIONS 


The  British  Hovering  Acts  of  1736  and  1784  assert  a juris- 
diction for  revenue  purposes  to  a distance  of  four  leagues 
from  the  shore,  and  there  are  acts  setting  up  a similar  claim 
for  health  purposes.  In  1797,  1799  and  1807  the  United 
States  Congress  legislated  to  the  same  effect,  and  many 
maritime  nations  have  embodied  the  like  provisions  in  their 
laws.1  Dana  argues,  however,  that  the  right  to  make  seizures 
beyond  the  three-mile  limit  has  no  existence  in  modern  Inter- 
national Law,  and  maintains  with  regard  to  the  act  of  Con- 
gress of  1797,  that  it  did  not  authorize  the  seizure  of  a vessel 
outside  the  marine  league,  but  only  its  seizure  and  punishment 
within  that  limit  for  certain  offences  committed  more  than 
three  miles,  but  less  than  twelve,  from  the  shore.2  It  is  very 
doubtful  whether  the  claim  would  be  sustainable  against  a 
remonstrance  from  another  power,  even  in  this  attenuated 
form.  When  it  is  submitted  to,  the  submission  is  an  act  of 
courtesy.  As  Twiss  rightly  and  properly  says:  “It  is  only 
under  the  comity  of  nations  in  matters  of  trade  and  health, 
that  a state  can  venture  to  enforce  any  portion  of  her  civil 
law  against  foreign  vessels  which  have  not  as  yet  come  within 
the  limits  of  her  maritime  jurisdiction.”  3 


§108. 

The  next  group  of  subjects  which  demand  attention  are 
those  connected  with 

The  right  of  innocent  passage. 

This  may  be  defined  as  the  right  of  free  passage  through 
the  territorial  waters  of  friendly  states  when  they  form 
, a channel  of  communication  between  two  por- 

Rights  over  i 

rigwTof  innocent  tions  of  the  high  seas.  There  can  be  no  doubt, 
passage.  that  when  both  the  shores  of  a strait  which  is 

not  more  than  six  miles  across  are  possessed  by  the  same 

1 Wharton,  International  Law  of  the  United  States,  § 32. 

2 Wheaton,  International  Law  (Dana’s  ed.),  258,  note. 

3 Law  of  Nations,  I.,  § 190. 


CONNECTED  WITH  PROPERTY. 


177 


power,  the  whole  of  the  passage  is  regarded  as  territorial 
water ; and  there  are  instances  of  wider  straits  which  are 
deemed  to  be  under  the  power  of  the  local  sovereign.  But 
these  territorial  rights  do  not  extend  to  the  absolute  exclusion 
of  the  vessels  of  other  states  from  the  waters  in  question.  In 
the  days  when  whole  seas  were  claimed  in  full  ownership,  the 
powers  which  owned  narrow  waterways  were  in  the  habit  of 
taking  tolls  from  foreign  vessels  as  they  passed  up  or  down  the 
straits.  The  most  famous  of  these  exactions  were  the  Sound 
Dues  levied  by  Denmark  upon  ships  of  other  powers  which 
sailed  through  the  Sound  or  the  two  Belts,  on  their  passage 
from  the  North  Sea  to  the  Baltic  or  from  the  Baltic  to  the 
North  Sea.  Their  origin  is  lost  in  remote  antiquity.  The 
earliest  treaties  in  which  they  are  mentioned  regard  them  as 
established  facts  and  recognize  the  right  of  Denmark  to  levy 
them.  In  the  Middle  Ages  other  states  negotiated  with  the 
territorial  power  as  to  their  amount,  and  sometimes  made  war 
upon  her  to  reduce  exorbitant  demands ; but  no  one  denied 
that  a reasonable  toll  might  lawfully  be  exacted.  But  with 
the  growth  of  modern  commerce  these  demands  became  in- 
creasingly irksome ; and  as  the  old  idea  of  appropriating  the 
ocean  gave  way  to  the  doctrine  that  it  was  free  and  open  to 
all,  it  was  felt  that  the  navigation  of  straits  which  connected 
two  portions  of  the  high  seas  was  an  adjunct  to  the  navigation 
of  the  seas  themselves,  and  should  be  as  free  in  one  case  as  in 
the  other.  Accordingly,  in  1857  Denmark  found  herself  un- 
able any  longer  to  levy  the  Sound  Dues,  though  her  jurists 
were  able  to  show  a clear  prescription  of  five  hundred  years  in 
her  favor.  By  the  Treaty  of  Copenhagen  she  gave  them  up.1 
A large  pecuniary  indemnity  was  paid  to  her  by  the  maritime 
powers  of  Europe ; but,  in  order  to  avoid  recognizing  by 
implication  any  right  on  her  part,  the  covenanted  sum  was 
declared  to  be  given  as  compensation  for  the  burden  of  main- 
taining lights  and  buoys  for  the  future.  In  the  same  year 
the  United  States  negotiated  a separate  convention  with 
1 Twiss,  Law  of  Nations,  § 188. 

N 


178 


RIGHTS  AND  OBLIGATIONS 


Denmark,  whereby  all  tolls  on  their  vessels  were  abolished, 
and,  in  consideration  of  a covenant  on  the  part  of  the  King 
of  Denmark  to  light  and  buoy  the  Sound  and  the  two  Belts 
as  before,  and  keep  up  an  establishment  of  Danish  pilots  in 
those  waters,  they  agreed  to  pay  him  the  sum  of  “three 
hundred  and  ninety-three  thousand  and  eleven  dollars  in 
United  States  currency.”  1 These  instances  show  that  the 
common  law  of  nations  now  imposes  upon  all  maritime 
powers  the  duty  of  allowing  a free  passage  through  such  of 
their  territorial  waters  as  are  channels  of  communication  be- 
tween two  portions  of  the  high  seas.  The  l ight  thus  created 
is,  of  course,  confined  to  vessels  of  states  at  peace  with 
the  territorial  power,  and  is  conditional  upon  the  observance 
of  reasonable  regulations  and  the  performance  of  no  unlawful 
acts.  It  extends  to  vessels  of  war  as  well  as  to  merchant 
vessels.  No  power  can  prevent  their  passage  through  its 
straits  from  sea  to  sea,  even  though  their  errand  is  to  seek 
and  attack  the  vessels  of  their  foe,  or  to  blockade  or  bombard 
his  ports.  As  long  as  they  commit  no  hostile  acts  in  terri- 
torial waters,  or  so  near  them  as  to  endanger  the  peace  and 
security  of  those  within  them,  their  passage  is  perfectly 
“ innocent.”  The  word,  as  used  in  the  phrase  “ right  of 
innocent  passage,”  refers  to  the  character  of  the  passage,  not 
to  the  nature  of  the  ship. 


§ 109. 


It  is  sometimes  supposed  that  the  regulations  in  force  for  the 
transit  of  vessels  through  the  Dardanelles  and  the  Bosphorus 
Rights  over  disprove  the  doctrine  we  have  just  laid  down  as 
special  case^ of  the  to  the  extension  of  the  right  of  innocent  passage 

Dardanelles  and  . . « _ . . 1 

the  Bosphorus.  to  ships  oi  war.  But  a short  historical  examina- 
tion  of  the  case  will  show  that  it  is  exceptional,  in  that  it  is 
governed  by  special  treaty  stipulations  and  not  by  the  ordinary 
rules  of  International  Law.  Till  1774,  when  Russia  com- 


1 Treaties  of  the.  United  States,  p.  239. 


CONNECTED  WITH  PROPERTY. 


179 


pelled  Turkey  to  open  the  Black  Sea  and  the  straits  leading 
to  it  from  the  Mediterranean  to  merchant  vessels,  it  had  been 
the  practice  of  the  Porte,  which  did  not  consider  itself  bound 
by  the  public  law  of  Europe,  to  forbid  the  passage  of  the 
Dardanelles  and  the  Bosphorus  to  ships  of  other  powers. 
After  1774  ships  of  war  were  still  excluded;  and  in  1809 
Great  Britain  recognized  this  practice  as  “ the  ancient  rule  of 
the  Ottoman  Empire.”  She  was  followed  in  1840  by  Austria, 
Russia  and  Prussia,  who  were  parties  with  her  to  the 
Quadruple  Treaty  of  London.  The  first  subsidiary  convention 
attached  to  the  Treaty  of  Paris  of  1856  revised  the  rule  so  as 
to  allow  the  passage  of  light  cruisers  employed  in  the  service 
of  the  foreign  Embassies  at  Constantinople,  and  of  a few 
small  vessels  of  war  to  guard  the  international  works  at  the 
mouth  of  the  Danube.  A further  modification  was  introduced 
by  the  Treaty  of  London  of  1871,  which  retained  the  previous 
rules,  but  reserved  power  to  the  Sultan  to  open  the  straits  in 
time  of  peace  to  the  war  vessels  of  friendly  powers,  if  he 
should  deem  it  necessary  in  order  to  secure  the  observance  of 
the  Treaty  of  Paris  of  1856. 1 These  last  two  treaties  have 
been  signed  by  all  the  Great  Powers,  and  are  universally 
accepted  as  part  of  the  public  order  of  Europe.  It  is  clear, 
therefore,  that  the  rules  they  lay  down  are  binding ; but  it  is 
equally  clear  that  these  rules  rest  upon  treaty  stipulation, 
and  not  upon  the  common  law  of  nations. 

We  now  see  that  the  case  of  the  Dardanelles  and  the 
Bosphorus  is  an  exception  to  ordinary  rules,  and  instead  of 
proving  that  the  right  of  innocent  passage  does  not  extend 
to  vessels  of  war,  it  proves  the  exact  contrary ; for,  if  the 
principle  of  exclusion  applied  under  International  Law,  there 
would  have  been  no  need  of  a long  series  of  treaties  in  order 
to  bring  it  into  operation.  It  may  be  added,  that  when  the 
regular  channel  for  navigation  between  two  parts  of  the  high 
seas  runs  through  marginal  waters,  there  is  a right  of  peaceful 

1 Twiss,  Law  of  Nations , I.,  § 189  ; Holland,  European  Concert  in  the 
Eastern  Question,  256-257  and  273. 


180 


RIGHTS  AND  OBLIGATIONS 


passage  along  it,  which  may  not  be  denied  or  impeded  by  the 
territorial  power.  The  accepted  modern  principle  is,  that  the 
waterway  between  open  seas  is  an  adjunct  of  the  seas  them- 
selves and  may  be  navigated  as  freely  as  they. 

§ no. 

We  now  pass  on  to  examine 

The  position  in  International  Laiv  of  interoceanic  canals , 

or  perhaps  we  ought  rather  to  say  the  position  of  the  Suez 
Canal,  since  it  is  the  only  one  of  the  kind  which  has  been 
Rights  over  completed  and  become  a fact  for  International 
lega^position^of  Law  to  deal  with.  Its  construction  raised  a 

interoceanic  . . 

canals.  new  question.  .Nothing  like  it  had  been  known 

since  the  modern  law  of  nations  came  into  being,  and  conse- 
quently that  law  contained  no  rules  that  were  applicable  to  it. 
It  runs  through  the  territory  of  a state  whose  civilization  is 
not  in  accordance  with  European  models,  and  which  therefore 
can  hardly  be  trusted  to  exercise  over  it  the  full  control  of  a 
territorial  sovereign  in  the  interests  of  European  commerce. 
Further,  it  was  made  by  a company  under  French  influence, 
and  is  worked  for  profit  under  concessions  from  the  Khedive 
of  Egypt,  confirmed  by  his  Suzerain,  the  Sultan.  Moreover, 
the  British  Government  has  become  a large  shareholder  in  the 
company,  and  the  position  of  the  canal  as  part  of  one  of  the 
great  trading-routes  of  the  world  gives  it  an  international  im- 
portance and  makes  it  an  object  of  concern  to  the  diplomacy  of 
the  maritime  powers.  It  is  sui  generis , and  its  legal  position 
could  not  be  defined  apart  from  special  agreement.  It  was 
opened  in  1869,  but  not  till  1888  did  the  powers  of  Europe 
agree  upon  the  rules  that  should  be  applied  to  it,  and  embody 
them  in  a great  international  document.  The  intervening 
time  was  filled  up  with  disagreements  and  negotiations,  which 
proved  conclusively  the  truth  of  the  proposition,  that  Inter- 
national Law  as  it  stood  was  unable  to  solve  the  difficulties 


CONNECTED  WITH  PROPERTY. 


181 


of  the  case.1  At  last  the  principle  of  neutralization  was 
applied  to  the  canal  by  the  convention  of  Oct.  29,  1888, 
which  was  signed  by  the  six  Great  Powers,  and  also  by 
Turkey,  Spain  and  the  Netherlands.  The  states  which 
possess  the  greatest  political  and  commercial  interests  in  the 
canal  have  combined  to  define  its  legal  status  and  lay  down 
the  international  rules  under  which  it  is  to  be  worked. 
Strictly  speaking,  their  action  does  not  bind  the  powers  that 
were  not  parties  to  the  convention,  but  as  none  of  these 
latter,  except  the  United  States,  are  of  first-rate  importance, 
and  all  have  tacitly  acquiesced  in  what  was  done,  the  prac- 
tical result  is  much  the  same  as  if  the  whole  body  of  civil- 
ized states  had  formally  expressed  their  adhesion  to  the 
new  order.  The  convention  declares  that  the  canal  is  to  be 
open  in  time  of  war,  as  well  as  in  time  of  peace,  to  all  ships, 
whether  merchantmen  or  vessels  of  war,  whether  belligerent 
or  neutral ; but  no  acts  of  hostility  are  to  be  committed  either 
in  the  channel  itself  or  in  the  sea  to  a distance  of  three 
marine  miles  from  either  end  of  it.  The  entrances  to  the 
canal  are  not  to  be  blockaded;  the  stay  of  belligerent  vessels 
of  war,  or  their  prizes,  in  the  ports  at  either  end  of  it  is  not  to 
exceed  twenty-four  hours  ; and  belligerents  are  not  to  embark 
troops  or  munitions  of  war  within  the  canal  or  its  ports.  The 
right  of  the  Khedive  and  the  Sultan,  as  territorial  powers,  to 
take  steps  for  the  protection  of  the  canal  in  the  event  of  its 
being  threatened  is  reserved,  but  hedged  about  with  many 
securities  and  restrictions.  If  it  should  be  necessary  for  them 
to  resort  to  force  to  provide  for  the  safety  of  the  waterway, 
they  are  not  to  erect  permanent  fortifications  along  it  or 
interfere  with  its  free  use  for  peaceful  purposes.2  It  is  much 
to  be  wished  that,  as  other  great  interoceanic  canals  are 
made,  similar  regulations  may  be  applied  to  them  in  the 
interests  of  peaceful  progress. 

1 Lawrence,  Essays  on  some  Disputed  Questions  in  Modern  International 

Law , II. 

2 British  State  Papers,  Egypt,  No.  2 (1889). 


182 


RIGHTS  AND  OBLIGATIONS 


§ HI- 

The  next  subject  we  have  to  discuss  under  the  head  of 
territorial  rights  over  waters  and  the  questions  connected 
therewith  is 

The  use  of  sea  fisheries. 

The  rules  of  International  Law  with  regard  to  them  'are 
simplicity  itself.  Within  the  territorial  waters  of  a state  its 
subjects  have  exclusive  rights  of  fishing,  but 
waters.”™ The  use  outside  territorial  waters,  on  the  high  seas, 

of  sea  fisheries.  on  r 0 

subjects  of  all  states  are  free  to  fish  on  the  one 
condition  that  they  do  so  peacefully.  These  rules  are, 
however,  often  modified  by  conventions,  giving  to  subjects  of 
one  power  the  right  to  fish  in  certain  specified  portions  of 
another’s  marginal  waters ; and  sometimes  controversies  arise 
as  to  the  meaning  and  extent  of  such  concessions.  Moreover, 
fisher-folk  are  apt  to  quarrel  among  themselves  in  places 
where  the  subjects  of  two  or  more  states  have  rights  in 
common.  To  settle  these  disputes  often  requires  a good  deal 
of  negotiation,  and  the  simple  precepts  of  the  common  law 
of  nations  are  interpreted  and  overlaid  by  a large  number  of 
conventional  rules.  We  have  already  seen  how  this  may 
take  place,  when  we  gave  an  account  of  the  Behring  Sea 
dispute  in  connection  with  the  subject  of  claims  to  dominion 
over  open  waters.1  The  North  Sea  Fisheries  Convention  of 
1883  will  afford  another  illustration.  It  provides,  among 
other  things,  for  the  police  of  the  fishing-grounds  in  the 
North  Sea  which,  being  outside  territorial  waters,  are  enjoyed 
in  common  by  the  subjects  of  all  the  signatory  powers.  The 
contracting  parties  agree  to  send  cruisers  to  enforce  the  regula- 
tions laid  down  in  the  convention,  and  in  serious  cases  to  ap- 
prehend offenders  and,  take  them  into  one  of  the  ports  of  their 
own  country  for  trial.2  No  grave  international  disagreement 
exists  in  connection  with  these  fisheries ; but  at  the  present  time 
1 See  § 106.  2 Hertslet,  Treaties,  XV.,  795  et  seq. 


CONNECTED  WITH  PROPERTY. 


183 


(1894)  Great  Britain  and  France  are  engaged  in  a serious 
and  long-standing  dispute  with  regard  to  the  exact  nature 
and  extent  of  the  rights  given  to  French  fishermen  along 
a portion  of  the  coast  of  Newfoundland  by  the  Treaty  of 
Utrecht  and  subsequent  agreements.  Moreover,  the  questions 
concerning  the  Canadian  fisheries,  which  have  from  time  to 
time  arisen  between  Great  Britain  and  the  United  States,  have 
not  yet  reached  a final  and  satisfactory  settlement.  In  further 
illustration  of  the  subject  we  will  give  a brief  account  of  the 
diplomatic  history  of  this  important  matter. 

By  the  treaty  of  1783,  which  recognized  the  independence 
of  the  United  States,  their  inhabitants  were  granted  rights  of 
fishing  on  “such  part  of  the  coast  of  Newfoundland  as  British 
fisherman  shall  use  ” and  also  on  the  coasts  of  all  other  British 
dominions  in  North  America.1  During  the  War  of  1812  these 
rights  could  not  be  exercised.  The  Treaty  of  Ghent,  which 
concluded  the  struggle  in  1814,  was  silent  upon  the  subject  of 
the  fisheries  ; and  in  consequence  a controversy  arose  between 
the  two  governments.  The  United  States  claimed  that  the 
treaty  of  1783  did  but  recognize  fishing-rights  which  existed 
independently  of  it,  and  therefore  remained  intact  even  if  the 
fishery  clause  in  it  were  abrogated  by  the  war.  The  British 
held  that  the  rights  in  question  were  created  by  the  treaty, 
and  fell  to  the  ground  when  the  outbreak  of  war  destroyed 
the  clause  on  which  they  rested.  The  matter  was  settled  for 
a time  by  the  treaty  of  1818,  by  which  it  was  agreed  that 
citizens  of  the  United  States  should  have  in  future  the  liberty 
of  taking  fish  of  every  kind  on  a clearly  defined  part  of  the 
coast  of  Newfoundland,  and  also  on  the  southern  and  eastern 
coasts  of  Labrador,  but  not  in  the  territorial  waters  of  other 
portions  of  the  North  American  possessions  of  Great  Britain. 
American  fishermen  were  “ to  have  liberty  forever  to  dry  and 
cure  fish  in  any  of  the  unsettled  bays,  harbors,  and  creeks  of 
the  southern  part  of  the  coast  of  Newfoundland  hereabove 
described,  and  of  the  coast  of  Labrador,”  but  were  to  lose  this 
1 Treaties  of  the  United  States,  p.  377. 


184 


RIGHTS  AND  OBLIGATIONS 


privilege  as  soon  as  the  inlets  became  settled,  unless  the 
inhabitants  chose  to  allow  them  to  land  as  before.  With 
regard  to  other  bays  and  harbors,  the  fishermen  of  the  United 
States  were  to  be  permitted  to  enter  them  “ for  the  purpose 
of  shelter  and  of  repairing  damages  therein,  of  purchasing 
wood,  and  of  obtaining  water,  and  for  no  other  purpose 
whatever.” 1 This  treaty  is  important,  because  the  subsequent 
diplomatic  history  of  the  question  hinges  upon  it.  All  other 
arrangements  have  proved  to  be  temporary,  and  when  they 
have  one  by  one  disappeared,  the  powers  concerned  have  been 
thrown  back  upon  its  stipulations.  Unfortunately,  the  progress 
of  colonization,  and  the  improvements  which  have  taken  place 
in  the  appliances  used  for  fishing,  have  rendered  it  very 
inadequate  to  the  conditions  under  which  the  industry  is 
pursued  in  modern  times,  and  in  addition  complications  have 
arisen  as  to  the  meaning  to  be  attached  to  the  phrase  “ coasts, 
bays,  creeks,  or  harbors.”  The  English  authorities  have 
been  disposed  to  claim  wide  inlets  and  great  expanses  of 
water  as  British  bays  from  which  American  fishermen  were 
excluded  by  the  terms  of  the  treaty,  while  the  authorities  of 
the  United  States  have  endeavored  to  restrict  British  waters 
within  narrow  limits  and  place  the  widest  construction  upon 
the  rights  accorded  to  their  fellow-citizens  in  them.  The 
treaty  of  1818  remained  in  force  for  thirty-six  years,  when  the 
disputes  which  arose  under  it  became  so  numerous  and  so 
troublesome,  that  an  attempt  was  made  to  solve  them  on  the 
basis  of  mutual  concession,  and  they  were  included  along 
with  matters  of  trade  and  navigation  in  the  Reciprocity  Treaty 
of  1854.  The  extent  of  British  coast  along  which  American 
fishermen  were  allowed  to  ply  their  craft  was  greatly  enlarged, 
and  British  fishermen  received  in  return  the  right  of  fishing 
along  the  eastern  coast  of  the  United  States  north  of 'the  36th 
parallel  of  latitude,  fisheries  in  rivers  and  the  mouths  of  rivers 
being  in  both  cases  reserved  to  subjects  of  the  territorial 
power.  Moreover,  provision  was  made  for  the  delimitation 
1 Treaties  of  the  United  States,  pp.  415,  416. 


CONNECTED  WITH  PROPERTY. 


185 


of  the  boundaries  of  such  places  as  were  excluded  from  the 
common  liberty  of  fishing.  The  treaty  was  to  remain  in  force 
for  ten  years,  and  after  that  time  each  of  the  contracting 
parties  possessed  the  right  of  bringing  it  to  an  end  by  giving 
a year’s  notice  to  the  other.1  The  Government  of  the  United 
States  “ denounced  ” it  in  1865,  and  in  1866  it  ceased  to  exist. 
The  two  powers  were  thus  thrown  back  upon  the  treaty 
of  1818,  which  proved  as  productive  of  disagreements  as 
before  ; and  in  1871  another  attempt  at  a settlement  was  made 
in  the  famous  Treaty  of  Washington  which  provided  for  the 
Alabama  arbitration.  By  it  the  provisions  of  the  Reciprocity 
Treaty  of  1854  were  re-established  with  a few  alterations  and 
additions.  British  subjects  received  the  right  to  fish  on  the 
eastern  coasts  of  the  United  States  north  of  latitude  39° 
instead  of  latitude  36°,  and  it  was  agreed  that  a commission 
should  sit  to  determine  whether  the  rights  granted  by  Great 
Britain  to  the  United  States  were  more  valuable  than  those 
granted  by  the  United  States  to  Great  Britain,  in  which  case 
a corresponding  pecuniary  indemnity  was  to  be  paid  by  the 
United  States  to  Great  Britain.2  This  provision  was  a virtual 
abandonment  of  the  original  contention  that  the  inhabitants 
of  the  United  States  had  a right  apart  from  treaty  stipulations 
to  share  in  the  British  fisheries.  Indeed,  the  whole  course  of 
the  negotiations  from  1818  onwards  shows  that  the  matter  was 
felt  to  be  one  for  mutual  concession.  The  commission  appointed 
under  the  treaty  of  1871  decided  in  favor  of  Great  Britain, 
and  awarded  her  compensation  to  the  amount  of  five  and 
a half  million  dollars,  which  the  United  States  Government 
promptly  paid,  though  they  contended  it  was  greatly  in  excess 
of  the  value  of  the  rights  their  citizens  had  gained.  At  the 
end  of  ten  years  from  the  time  when  the  fishery  arrangements 
came  into  force  in  1873,  either  party  to  the  treaty  was  to  have 
the  right  of  terminating  them  by  giving  two  years’  notice  to 
the  other.  They  were  brought  to  an  end  in  1885  in  conse- 
quence of  notice  given  by  the  President  of  the  United  States 
1 Treaties  of  the  United  States,  pp.  448-453.  2 Ibid.,  pp.  480-488. 


186 


RIGHTS  AND  OBLIGATIONS 


in  1883.  The  provisions  of  the  treaty  of  1818  were  revived 
thereby,  and  the  old  difficulties  began  immediately  to  recur. 
In  the  hope  of  terminating  them  the  British  Government  sent 
plenipotentiaries  to  Washington  in  1887  charged  with  the 
duty  of  negotiating  a fresh  fishery  treaty.  They  succeeded 
in  coming  to  an  agreement  with  the  American  plenipoten- 
tiaries upon  the  basis  of  a minute  and  accurate  delimitation 
of  the  bays  within  which  the  inhabitants  of  the  United  States 
were  forbidden  to  fish  by  the  treaty  of  1818,  and  of  an  equally 
elaborate  description  of  the  privileges  and  duties  of  American 
fishing-vessels  in  Canadian  ports  and  harbors.1  But  the 
treaty  they  negotiated  was  refused  ratification  by  the  Senate 
of  the  United  States  ; and  the  contracting  parties  were  thrown 
back  upon  the  provisions  of  a modus  vivendi  which  had  been 
agreed  upon  by  the  plenipotentiaries  as  a means  of  avoiding 
difficulties  in  the  interval  between  the  signing  of  the  treaty 
and  its  coming  into  force.2  It  is  much  to  be  wished  that  no 
long  time  may  elapse  before  a final  settlement  is  arrived  at, 
and  an  irritating  controversy  betwen  two  kindred  and  friendly 
nations  ended  on  terms  satisfactory  and  honorable  to  boU 


§112. 


The  last  point  we  have  to  deal  with  in  connection  with  our 
present  subject  is 


The  navigation  of  great  arterial  rivers. 


International  questions  arise  when  a navigable  river  flows  in 
part  of  its  course  through  the  territory  of  one  state,  and  in 
Eights  over  part  through  the  territory  of  another.  There 
navhratio r^of  £reat  can  be  no  doubt  that  each  state  possesses  terri- 

arterial  rivers.  rightg  oyer  that  portion  of  the  river  which 

is  entirely  within  its  own  boundaries.  But  have  all  the 

1 British  State  Papers,  United  States,  No.  1 (1888). 

2 For  the  whole  subject  see  Wharton,  International  Law  of  the  United 
States,  §§  301-308  ; Wheaton,  International  Law  (Dana’s  ed.),  pp.  342-350 
and  note  142  ; Hall,  International  Law,  § 27. 


CONNECTED  WITH  PROPERTY. 


187 


riverian  states  a right  to  navigate  the  whole  river,  or  may 
each  exclude  the  vessels  of  the  others  from  its  own  portion 
of  the  waterway?  There  is  no  general  agreement  among 
authoritative  writers  on  International  Law  with  regard  to 
this  question.  Some  hold  that  there  is  a right  of  navigation,1 
others  deny  the  existence  of  anything  of  the  kind,2  while 
a third  school  declare  that  the  right  is  imperfect,  by  which 
they  mean  that  it  cannot  be  claimed  apart  from  special 
agreement  and  may  be  surrounded  in  its  exercise  with  what 
restrictions  the  territorial  power  sees  fit  to  impose.3  These 
last  are  evidently  using  self-contradictory  phraseology;  for 
a right  that  cannot  be  insisted  upon  is  no  right  at  all,  but 
a mere  permission  depending  on  good-will.  The  other  two 
schools  are  so  flatly  opposed  to  one  another  in  their  doctrines, 
that  they  give  us  no  useful  guidance.  We  must  therefore 
examine  for  ourselves  the  cases  that  have  occurred,  and 
endeavor  to  obtain  from  them  some  consistent  rule.  We  find 
that  the  great  European  rivers  which  run  through  the  terri- 
tories of  more  powers  than  one  were  subject  to  tolls  till  the 
beginning  of  the  present  century.  But  in  1804  the  Congress 
of  Rastadt  abolished  the  Rhine  tolls  ; and  in  1815  the  Congress 
of  Vienna  decided  that  the  great  rivers  of  Western  Europe 
should  for  the  future  be  open  to  navigation,  and  that  the  tolls 
to  be  levied  on  each  of  them  should  be  settled  by  common 
accord  among  the  riverian  powers.  In  pursuance  of  this 
agreement,  the  Rhine,  the  Elbe,  and  other  rivers  were  at 
various  times  after  1815  opened  to  free  navigation  on  payment 
of  such  moderate  dues  as  were  sufficient  to  recoup  the  terri- 
torial powers  for  their  expenditure  upon  the  waterway.4  The 
Danube  was  freed  by  the  Treaty  of  Paris  of  1856,  and 
a European  commission  was  charged  with  the  duty  of  exe- 
cuting the  necessary  engineering  works  at  its  mouth  and 
permitted  to  levy  tolls  sufficient  to  pay  their  cost.  The 

1 e.g.,  Calvo,  Droit  International , § 291. 

2 e.g.,  Twiss,  Law  of  Nations,  I.,  § 145. 

3 e.g. , Wheaton,  International  Law,  § 193. 

4 Hall,  International  Law,  § 39. 


188  EIGHTS  AND  OBLIGATIONS 

authority  of  this  commission  has  been  continued  and  increased 
by  a series  of  international  agreements,  the  last  of  which, 
made  in  1883,  prolonged  its  powers  for  twenty-one  years  from 
that  date  and  provided  for  their  further  prolongation  from 
time  to  time.1 

If  we  turn  to  the  New  World  we  find  the  same  tendencies 
at  work  with  regard  to  the  great  arterial  rivers  of  the  North 
American  continent.  When  the  United  States  obtained 
formal  recognition  of  their  independence  from  Great  Britain 
in  1783,  Spain  held  Louisiana  and  Florida  and  thus  possessed 
both  hanks  of  the  Mississippi  at  its  mouth  and  for  a consider- 
able distance  inland.  The  American  Government  claimed  for 
its  citizens  free  navigation  to  the  sea  as  a right ; but  after 
long  negotiations  the  dispute  was  terminated  in  1795  by  the 
Treaty  of  San  Lorenzo  el  Real,  which  provided  that  the 
navigation  of  the  river  from  its  source  to  its  mouth  should 
be  free  to  the  subjects  and  citizens  of  the  two  powers.2  With 
regard  to  the  St.  Lawrence  events  followed  a similar  course. 

O 

The  United  States  asserted  and  Great  Britain  denied,  that 
American  citizens  had  a right  by  the  law  of  nations  to  navi- 
gate that  portion  of  the  river  which  flows  entirely  through 
Canadian  territory.  The  Reciprocity  Treaty  of  1854  granted 
the  privilege  demanded  in  return  for  a grant  to  British 
subjects  of  freedom  to  navigate  Lake  Michigan,  but  reserved 
a right  of  suspending  the  concession  on  giving  due  notice  ; 
and  finally  by  the  Treaty  of  Washington  of  1871  the  naviga- 
tion of  the  British  portion  of  the  St.  Lawrence  was  thrown 
open  “forever”  to  citizens  of  the  United  States.3 

The  conclusion  to  be  drawn  from  these  facts  seems  evident. 
It  is  that  while  as  a matter  of  strict  right  a state  possessed  of 
one  portion  of  a navigable  river  can  exclude  from  that  portion 

1 Holland,  European  Concert  in  the  Eastern  Question , 248-250,  308—322. 

2 Twiss,  Lav:  of  Nations,  I.,  § 145 ; Treaties  of  the  United  States,  1007, 
1382-1384. 

3 Wharton,  International  Law  of  the  United  States,  § 30;  Treaties  of  the 
United  States , p.  488. 


CONNECTED  WITH  PPwOPERTY. 


189 


the  subjects  of  the  other  riverain  states,  yet  as  a matter  of 
comity  it  refrains  from  exercising  its  full  rights  in  this  respect, 
nor  does  it  levy  tolls  for  any  other  purpose  than  to  provide 
lights  and  buoys  and  cover  the  incidental  expenses  of  keeping 
the  waterway  in  good  condition.  We  may  further  say  that 
the  tendency  in  favor  of  freedom  of  navigation  is  so  strong 
that  any  attempt  to  revive  the  exercise  of  the  right  of  total 
exclusion,  or  even  to  levy  tolls  for  profit,  would  be  regarded 
as  an  aggression.  Usage  is  turning  against  the  ancient  rule. 
It  is  now  set  aside  by  treaty  stipulations  ; but  in  time  the  new 
usage  founded  upon  them  will  give  rise  to  a new  rule,  and  no 
treaty  will  then  be  required  to  provide  for  the  free  navigation 
of  a river  by  the  co-riparian  states.  It  is  an  admitted  principle 
that  the  right  of  traversing  the  stream  carries  with  it  the  right 
of  using  the  banks  for  purposes  incidental  to  navigation. 

When  a large  navigable  river  runs  in  its  entire  course 
through  the  territory  of  one  state,  the  right  of  exclusion 
probably  still  remains.  But  no  difficulties  arise  in  practice  ; 
for  all  nations  civilized  after  the  European  model  allow,  and 
even  encourage,  the  navigation  of  their  arterial  waters  by  the 
ships  of  other  states.  In  most  cases  the  permission  to  navi- 
gate is  tacitly  given ; but  in  some  South  American  instances, 
where  exclusion  has  till  recently  been  the  rule,  rivers  have 
been  thrown  open  by  a formal  act  of  the  state.  Thus  in  1867 
the  Emperor  of  Brazil  issued  a decree  opening  the  navigation 
of  the  Amazon  and  its  tributaries'  to  the  merchant  vessels 
of  all  nations.1  The  powers  concerned  in  the  opening  up  of 
Africa  have  already  begun  to  apply  to  its  arterial  rivers  the 
principles  previously  admitted  in  the  case  of  the  great  navi- 
gable streams  of  Europe  and  America.  In  1885  the  Final 
Act  of  the  West  African  Conference  decreed  that  the  Congo 
and  the  Niger  and  their  affluents  should  be  freely  open  to 
navigation  by  the  merchant  ships  of  all  nations  without 
exception  or  discrimination.2 

1 Wharton,  International  Law  of  the  United  States,  I.,  98. 

2 British  State  Papers,  Africa,  No.  4 {1885),  pp.  308,  311. 


CHAPTER  III. 


RIGHTS  AND  OBLIGATIONS  CONNECTED  WITH  JURISDICTION. 


113. 


There  are  two  principles  either  of  which  could  be  made 
the  basis  of  a system  of  rules  with  regard  to  jurisdiction.  It 
a state  has  juris-  might  be  held  that  the  authority  of  the  state 
persons°and  a1'  should  be  exercised  over  all  its  citizens  wherever 
territory, '^tha  they  may  be  found,  or  that  it  should  be  exer- 
few  exceptions.  cised  over  all  persons  and  all  matters  within  its 
territorial  limits.  Modern  International  Law,  being  per- 
meated throughout  by  the  doctrine  of  territorial  sovereignty, 
has  adopted  the  latter  principle  as  fundamental.  But,  inas- 
much as  it  could  not  be  applied  at  all  in  some  cases  and  in 
others  its  strict  application  would  be  attended  with  grave  in- 
convenience, various  exceptions  have  been  introduced  based 
upon  the  alternative  principle  that  a state  has  jurisdiction 
over  its  own  subjects  wherever  they  may  be.  All  that  we 
can  venture  to  put  forth  in  the  way  of  a broad  general 
proposition  is  that  Jurisdiction  is  in  the  main  territorial. 
In  order  to  deal  with  the  subject  properly  we  must  attack 
it  in  detail  ; and  the  first  rule  we  will  lay  down  is  that  A 
STATE  HAS  JURISDICTION  OVER  ALL  PERSONS  AND  THINGS 
within  its  Territory.  There  are  a few  exceptions  ; but 
we  will  not  consider  them  till  we  have  dealt  with  the  general 
principles. 

§ H4. 

Among  the  persons  who,  being  within  the  state’s  territory 
are  subject  to  its  jurisdiction,  the  first  class  to  be  considered 

190 


BIGHTS,  ETC.,  CONNECTED  WITH  JUKISDICTION.  191 


are  its  Natural-lorn  Subjects.  Each  country  defines  for 
itself  by  its  Municipal  Law  what  circumstances  Natural_born  sub. 
of  birth  shall  make  a person  its  subject.  It  Jects- 
may  consider  the  locality  of  the  birth  to  be  the  all-important 
point,  making  a subject  of  every  child  born  within  its  terri- 
tory no  matter  whether  the  parents  are  natives  or  foreigners; 
or  it  may  regard  the  nationality  of  the  parents,  or  one  of 
them,  as  the  determining  circumstance,  making  subjects  of 
the  children  of  subjects,  wherever  born,  and  aliens  of  the 
children  of  aliens,  wherever  born.  Both  principles  give  the 
same  result  in  the  case  of  those  born  within  the  state  of 
parents  who  are  its  subjects,  and  such  persons  will  always 
form  the  vast  majority  of  the  inhabitants  of  any  but  a very 
new  country.  There  can  be  no  doubt  that  they  are  natural- 
born  subjects,  whether  the  law  of  the  land  adopts  the  first 
or  the  second  of  the  views  just  enunciated.  But  in  other 
cases  these  principles  lead  to  different  results.  For  instance, 
those  born  outside  the  state’s  territory  of  parents  who  belong 
to  the  state  are  aliens  according  to  the  first  principle,  but 
subjects  according  to  the  second  ; and  those  born  within  the 
state’s  territory  of  parents  who  do  not  belong  to  the  state  are 
subjects  according  to  the  first  principle,  but  aliens  according 
to  the  second.  States  are  free  by  virtue  of  their  indepen- 
dence to  adopt  in  these  matters  what  principles  they  please, 
and  they  embody  in  their  laws  a great  variety  of  rules.  The 
result  is  that  conflicting  claims  and  difficulties  of  all  sorts 
arise  on  the  subject  of  nationality  and  citizenship.  England 
and  the  United  States,  for  instance,  adopt  with  regard  to 
children  of  their  own  subjects  and  citizens  the  rule  of  nation- 
ality. Though  born  abroad  they  are  British  or  American 
subjects  as  the  case  may  be.1  With  regard  to  the  children 
of  foreigners  the  two  countries  adopt  the  principle  of  local- 
ity, and  claim  as  their  own  all  children  born  within  their 

1 7 Anne,  c.  5 ; 4 Geo.  II.,  c.  21 ; 13  Geo.  III.,  c.  21  ; Revised  Statutes  of  the 
United  States,  §§  1993,  2172. 


192 


RIGHTS  AND  OBLIGATIONS 


dominions.1  France  on  the  other  hand  adopts  for  all  pur- 
poses the  principle  of  nationality,  and  holds  children  to  be 
subjects  of  their  parents’  state,  wherever  they  may  be  born.2 
Thus  a child  born  in  England  of  French  parents  would  be 
a British  subject  according  to  the  law  of  England,  and  a 
French  subject  according  to  the  law  of  France.  In  such 
cases  there  is  evident  danger  of  serious  complications  if  each 
state  acts  upon  its  extremest  rights.  But  difficulties  are 
generally  avoided  by  the  tacit  consent  of  each  to  attempt 
no  exercise  of  authority  over  such  a citizen  as  long  as  he 
remains  outside  its  borders,  and  to  make  no  objection  to  the 
exercise  of  authority  over  him  by  the  other  while  he  resides 
within  its  limits.  And  further,  the  laws  of  several  countries 
give  to  persons  of  double  nationality  a right  of  choice  on 
arriving  at  years  of  discretion.  Thus  in  England  the  child 
of  aliens  may  elect  to  possess  the  nationality  of  his  parentage 
when  he  comes  of  age,3  and  in  France  the  child  of  aliens 
may  in  like  manner  choose  French  nationality.4  Illegitimate 
children  are  as  a rule  held  to  belong  to  the  state  of  which 
their  mother  is  a subject.  In  matters  like  these  Interna- 
tional Law  simply  recognizes  as  facts  the  results  of  the 
operations  of  Municipal  Law.  It  does  not  define  who  are 
natural-born  subjects ; but  it  does  say  that  all  the  natural- 
born  subjects  of  a state  are  under  its  jurisdiction  within 
its  territories  and  entitled  to  its  protection  outside  them. 
Their  privileges  with  respect  to  the  state  are  of  the  widest 
kind,  as  also  are  their  obligations  towards  it.  The  tie  of 
allegiance  between  it  and  them  is  drawn  very  close.  In 
most  countries  they  are  eligible  for  offices  denied  even  to 
naturalized  subjects  and  citizens,  and  their  responsibilities 
are  commensurate  with  their  rights. 

1 Constitution  of  the  United  States , 14th  Amendment ; Calvin’s  Case,  for 
which  see  Howell’s  State  Trials,  Vol.  II.,  and  Broom’s  Constitutional  Law. 

2 Code  Civil,  I.,  I.,  i.,  10. 

3 33  & 34  Victoria,  c.  14. 

4 Code  Civil,  I.,  I.,  i.,  9. 


CONNECTED  WITH  JURISDICTION. 


193 


§ 115. 

The  next  class  in  importance  of  those  who  being  within 
the  territory  are  under  the  jurisdiction  of  the  state  are 
Naturalized  Subjects.  They  are  persons  be-  Naturalized  sub. 
tween  whom  and  the  state  the  tie  of  alle-  ■’ects- 
giance  has  been  artificially  created  by  a process  termed 
Naturalization.  Sometimes  naturalization  takes  place  with- 
out any  special  formalities  as  an  inseparable  incident  of 
something  else.  For  instance,  when  a subject  marries  a 
foreign  woman  by  the  law  of  most  countries  the  wife 
acquires  the  nationality  of  her  husband  and  loses  her 
own.  The  United  States,  however,  do  not  look  upon  an 
American  woman  married  to  a foreigner  as  subject  to  all 
the  disabilities  of  alienage,  though  they  regard  a foreign 
woman  married  to  an  American  as  an  American  subject.1 
But  naturalization  is  usually  effected  by  a separate  formal- 
ity, which  takes  place  when  a foreigner  situated  in  a coun- 
try wishes  to  acquire  therein  the  rights  of  citizenship. 

It  is  the  policy  of  most  states  to  put  little  difficulty  in 
the  way  of  the  reception  of  new  subjects  under  such  cir- 
cumstances, though  many  of  them  dislike  the  naturalization 
of  their  own  subjects  in  foreign  states.  International  Law 
prescribes  no  general  formalities  for  use  when  a change  of 
allegiance  is  effected  ; but  the  lafv  of  each  state  lays  down 
the  conditions  on  which  it  will  receive  foreigners  into  the 
ranks  of  its  citizens.  Thus  in  the  United  States  the  general 
rule,  to  which,  however,  there  are  several  exceptions,  is  that 
the  alien  who  wishes  to  become  a citizen  must  make  a decla- 
ration on  oath  to  that  effect  before  a court  after  three  years’ 
residence  in  the  country  ; and  after  he  has  remained  within  • 
the  territory  for  two  years  more,  making  in  all  five  years  of 
residence,  he  must  take  an  oath  of  fidelity  to  the  United 
States  and  renunciation  of  his  former  allegiance.2  In  Eng- 

1 Wharton,  International  Law  of  United  States,  § 186. 

2 Revised  Statutes,  Title  XXX.,  Naturalization. 


194 


RIGHTS  AND  OBLIGATIONS 


land  till  lately  naturalization  could  be  effected  only  by  Act 
of  Parliament ; but  under  a law1  passed  in  1870  a certificate 
of  naturalization  may  be  granted  at  his  discretion  by  the 
Secretary  of  State  for  the  Home  Department  to  any  alien 
who  has  resided  in  the  United  Kingdom  or  been  in  the  ser- 
vice of  the  Crown  for  five  years,  on  condition  that  he  con- 
tinues to  reside  or  serve  as  before.  The  applicant  must  take 
the  oath  of  allegiance,  and  when  he  has  done  so  and  obtained 
the  certificate  he  becomes  a British  subject  within  the  United 
Kingdom.  India  and  the  Colonies  have  laws  of  their  own 
with  regard  to  naturalization  in  them.  The  legal  effects  of 
naturalization,  in  so  far  as  they  concern  the  person  natural- 
ized in  his  relation  to  the  state  of  his  choice,  are  determined 
exclusively  by  its  law.  He  has  to  fulfil  all  the  duties  of  a 
natural-born  citizen,  yet  some  states  do  not  grant  him  all 
the  political  rights  of  one.  In  England  till  recently  he 
could  not  sit  in  either  House  of  Parliament  or  be  a member 
of  the  Privy  Council  ; but  the  Naturalization  Act  of  1870 
removed  all  political  disabilities,  and  placed  him  on  the 
same  footing  as  a natural-born  subject.  In  the  United 
States  all  Federal  offices,  except  those  of  President  and 
Vice-President,  are  open  to  naturalized  citizens.2 


. § 116. 


International  questions  may  arise  when  a naturalized  sub- 
ject of  a state  returns  to  the  country  of  his  original  alle- 
giance and  claims  to  be  treated  there  as  a 
citizen  of  his  new  country.  Is  he  to  be  so 
regarded,  or  is  he  rightly  made  to  perform 
towards  the  state  of  his  birth  all  the  obligations  of  a citi- 
zen while  he  resides  within  its  territory  ? The  practice  of 
states  is  diverse  on  this  point,  and  the  most  conflicting 
views  have  been  enunciated.  The  laws  of  civilized  coun- 


International 
questions  con- 
nected with 
naturalization. 


1 The  Naturalization  Act,  33  & 34  Victoria,  c.  14. 

2 Constitution  of  the  United  States , Art.  II.,  § 1. 


CONNECTED  WITH  JURISDICTION. 


195 


tries  differ  both  as  to  the  position  they  take  up  towards 
their  own  citizens  naturalized  abroad  and  as  to  the  protec- 
tion they  afford  to  foreigners  who  have  become  their  citi- 
zens by  naturalization.  With  regard  to  the  subject  who 
has  acquired  a foreign  nationality,  we  find  that  on  the  one 
hand  the  old  doctrine  of  inalienable  allegiance,  set  forth 
in  the  maxim  Nemo  potest  exuere  patriam,  is  still  acted  upon 
in  all  its  severity  in  Russia,1  and  that  on  the  other  hand  a 
“right  of  expatriation  ” has  been  asserted  by  the  Congress 
of  the  United  States  in  a statute  of  1868  to  be  “a  natural 
and  inherent  right  of  all  people.”  2 Between  these  extremes 
the  law  of  the  great  majority  of  states  hovers,  imposing  con- 
ditions upon  expatriation  and  declaring  that  the  subject 
naturalized  abroad  loses  by  naturalization  his  quality  of 
citizen  for  most  purposes.  Some  states,  like  Italy,3  still 
regard  him  as  subject  to  military  service,  and  several  con- 
sider him  to  be  punishable  with  death  if  he  bears  arms 
against  his  native  country.  In  the  converse  case  of  a citi- 
zen of  a foreign  country  who  has  become  a naturalized  sub- 
ject, some  states  regard  him  as  entirely  and  for  all  purposes 
on  an  equality  as  to  rights  and  protection  with  their  born 
subjects,  while  others  recognize  that  the  country  of  his  birth 
still  has  rights  against  him,  which  it  may  enforce  if  he  goes 
within  its  territory.  The  legislative  department  of  the 
United  States  Government  seems  to  be  in  advance  of  the 
executive  in  its  doctrine  of  a natural  right  of  expatriation. 
Mr.  Wheaton,  when  Minister  at  Berlin  in  1840,  refused  to 
take  up  the  case  of  J.  P.  Knacke,  a Prussian  who  had  been 
naturalized  in  the  United  States  and  had  returned  to  Prus- 
sia. He  was  there  compelled  to  serve  in  the  Prussian  army, 
and  Mr.  Wheaton  held  that  the  United  States  could  not 

1 British  State  Papers  for  1869,  Report  of  the  Naturalization  Commission , 
Appendix,  p.  59. 

4 Revised  Statutes,  § 1999. 

3 British  State  Papers  for  1869,  Report  of  the  Naturalization  Commis- 
sion, Appendix,  p.  28. 


196 


RIGHTS  AND  OBLIGATIONS 


interfere  to  protect  him  in  the  country  of  his  birth.  Mr. 
Webster  took  similar  ground  when  Secretary  of  State  in 
1852  in  the  cases  of  Ignacio  Tolen,  a Spaniard,  and  Victor 
Depierre,  a Frenchman.  But  General  Cass,  who  held  the 
same  high  office  in  1859,  drew  a distinction  in  the  case  of 
Hofer,  a Prussian,  between  inchoate  and  perfect  obligation, 
and  claimed  a right  to  protect  naturalized  citizens  in  the 
countries  of  their  birth  unless  the  offence  was  complete 
before  expatriation.  The  Prussian  Government  declined  to 
admit  this  contention,  but  gave  a discharge  from  the  army 
at  the  request  of  the  United  States  Minister,  thus  granting 
as  a favor  what  it  refused  as  a right.1  The  executive  de- 
partment has  never  gone  beyond  the  position  taken  up  by 
General  Cass,  and  has  succeeded  in  getting  it  embodied  in 
recent  treaties.  The  year  1868  witnessed  considerable  ac- 
tivity of  negotiation  on  the  subject  of  Naturalization,  and 
conventions  were  negotiated  with  Austria,  the  North  Ger- 
man Confederation  which  grew  in  1870  into  the  German 
Empire,  and  Baden.  These  have  since  been  followed  by 
others,  and  nearly  all  of  them  expressly  provide  that  a 
naturalized  citizen  of  one  country  who  is  by  birth  a subject 
of  the  other  may  be  tried  on  his  return  to  his  fatherland  for 
offences  against  its  laws  committed  before  his  emigration. 
In  some  special  mention  is  made  of  military  service,  and  it 
is  stipulated  that  the  obligation  must  have  actually  accrued 
before  emigration  in  order  to  render  the  offender  liable  to 
military  duty  on  his  return,  or  to  trial  and  punishment  for 
the  neglect  of  it.  The  possibility  of  a future  call  to  service 
is  not  enough.  The  call  must  actually  have  been  made.2 
Till  recently  the  law  of  Great  Britain  embodied  the  doctrine 
of  inalienable  allegiance  ; and  one  of  the  chief  causes  of  her 

1 Halleck,  International  Law  (Baker’s  ed.),  I.,  357-359;  Wheaton,  In- 
ternational Law  (Dana’s  ed.),  142,  note  ; Wharton,  International  Law  of  the 
United  States,  § 181. 

2 See  Art.  II.  of  the  Baden  Treaty  of  1868  ; Treaties  of  the  United  States, 
p.  43. 


CONNECTED  WITH  JURISDICTION. 


197 


war  with  the  United  States  in  1812  was  the  rigor  with 
which  that  doctrine  was  applied  by  her  Government.  Brit- 
ish cruisers  took  from  American  vessels  on  the  high  seas 
naturalized  American  citizens  and  impressed  them  for  ser- 
vice in  the  royal  navy,  on  the  grounds  that  they  were 
British  subjects  by  birth  and  that  no  forms  gone  through  in 
America  could  divest  them  of  their  British  nationality.  But 
practice  softened  as  the  century  wore  on,  and  gradually 
opinion  changed,  till  by  the  Naturalization  Act  of  1870  the 
old  doctrine  of  the  common  law  was  abandoned  and  Great 
Britain  recognized  the  naturalization  of  her  subjects  abroad. 
The  Act  laid  down  that  they  lost  their  British  citizenship 
by  voluntarily  assuming  citizenship  in  another  state ; and, 
with  regard  to  naturalized  citizens  of  Great  Britain,  it  de- 
clared that  they  would  be  protected  wheresoever  they  might 
be  except  in  the  country  of  their  original  allegiance.  They 
would  not  be  entitled  to  the  privileges  of  British  citizens 
within  its  borders,  unless  by  acquiring  their  new  nationality 
they  ceased  to  be  its  subjects  according  to  its  laws  or  the 
stipulations  of  a treaty  made  with  it. 

This  rule  seems  to  accord  best  with  sound  and  undoubted 
principles.  A state  as  an  independent  political  unit  has  a 
right  to  accept  as  citizens  on  its  own  conditions  all  who  may 
come  into  its  territory  and  desire  to  attach  themselves  to  it. 
But  it  can  hardly  claim  a right  to  dictate  to  another  state 
the  conditions  on  which  that  state  shall  give  up  all  claim  to 
the  allegiance  of  its  born  subjects.  To  do  so  would  be  to 
intrude  into  the  sphere  of  its  legislation  and  trench  upon  its 
independence.  No  surer  method  of  producing  international 
complications  could  well  be  found ; whereas  the  rule  of 
leaving  to  the  state  of  birth  to  determine  whether  it  will 
recognize  the  new  citizenship  or  not,  when  the  individual 
who  has  acquired  it  returns  within  its  territory,  precludes 
all  possibility  of  controversy,  while  recognizing  both  the 
right  of  the  naturalizing  state  to  acquire  citizens  in  its  own 
way,  and  the  right  of  the  mother  state  to  deal  as  it  thinks  fit 


198 


RIGHTS  AND  OBLIGATIONS 


with  all  persons  in  its  dominions  who  are  its  subjects  accord- 
ing to  the  provisions  of  the  local  law.  The  United  States 
and  some  other  countries,  as  we  have  just  seen,  endeavor 
to  settle  these  questions  by  treaty.  It  cannot  be  said  that 
there  is  any  rule  of  International  Law  with  regard  to  them. 
Neither  opinion  nor  practice  is  yet  sufficiently  uniform  to 
create  one  ; but  the  tendencies  seem  in  favor  of  the  rule  of 
the  United  States  treaties  or  the  rule  of  the  British  Naturali- 
zation Act.  Both  are  based  upon  the  same  principle  ; but 
the  treaties  stop  short  in  its  application,  whereas  the  Act 
carries  it  to  its  logical  conclusion.  There  can  be  no  doubt 
that  a naturalized  citizen  can  denaturalize  himself  and  get 
rid  of  his  acquired  character,  just  as  he  got  rid  of  the  charac- 
ter given  him  by  birth.  If  he  returns  to  his  fatherland  and 
shows  an  intention  to  remain  there  indefinitely,  his  original 
nationality  easily  reverts  to  him.1 

§ 117- 

Having  dealt  with  natural-born  and  naturalized  subjects, 
we  have  now  to  deal  with  a class  of  persons  who  are  not 

subjects  at  all,  but  whose  long  residence  within 

Domiciled  aliens.  ° 

a state  gives  them  a peculiar  position  under  its 
law.  They  are  called  Domiciled  Aliens.  In  order  to  obtain 
a domicil  in  a particular  place  it  is  necessary  to  reside  there 
and  to  have  an  intention  to  remain  in  it  for  an  indefinite 
time.  In  short  a man’s  domicil  is  his  home.  Temporary 
absences  will  not  destroy  his  legal  relation  to  it ; for  when- 
ever he  goes  away  he  has  an  intention  of  returning.  It  is 
not  necessary  that  he  should  mean  to  spend  his  entire  life 
there.  A subject  of  one  country  may  go  into  another  for 
business  purposes,  with  the  intention  of  returning  to  his 
own  land  when  he  has  made  a fortune  or  acquired  a certain 
position.  But  seeing  that  his  stay  is  of  indefinite  duration, 
and  that  while  it  lasts  the  centre  of  his  affairs  and  his 
1 Wharton,  International  Law  of  the  United  States,  §§  176-179,  190. 


CONNECTED  WITH  JURISDICTION. 


199 


domestic  relations  are  in  the  foreign  country,  lie  is  domiciled 
there.  He  need  not  become  a citizen  in  order  to  acquire  a 
domicil.  The  great  majority  of  residents  in  a country  are 
its  citizens  and  subjects  ; but  neither  in  law  nor  in  fact  is 
there  any  necessary  connection  between  citizenship  and 
domicil.  The  former  is  a relation  between  state  and  sub- 
ject created  by  the  law  and  depending  entirely  upon  its  pro- 
visions. The  latter  is  a fact  of  which  the  law  takes  note 
and  on  which  it  bases  many  of  its  rules.  Most  persons  are 
domiciled  in  the  country  of  which  they  are  citizens  ; but  it 
is  quite  possible  for  a man  to  be  a citizen  of  one  state  and 
have  his  domicil  in  another ; and  it  is  in  these  latter  cases 
that  international  questions  sometimes  arise  owing  to  the 
conflicting  claims  of  the  two  countries. 

For  international  purposes  domicil  is  of  two  kinds  — 
Domicil  of  Origin,  which  in  the  case  of  legitimate  children  is 
the  domicil  of  the  father  at  the  time  of  birth  and  in  the 
case  of  illegitimate  children  that  of  the  mother  at  the  same 
time;  and  Domicil  of  Choice , which  is  the  domicil  deliber- 
ately adopted  by  a person  of  full  age.1  Till  years  of  discre- 
tion are  reached  the  domicil  of  a child  may  be  changed  by  a 
change  of  domicil  on  the  part  of  parents  or  guardians,  but 
not  by  its  own  volition.  A domicil  of  choice  is  by  no 
means  unchangeable.  A man  may  lose  it  and  gain  another 
by  the  same  means  as  those  by  which  he  acquired  it;  and  if 
he  returns  to  his  own  country  his  domicil  of  origin  easily 
reverts  to  him.  It  is  difficult  to  say  with  any  degree  of 
exactness  how  far  the  rules  with  regard  to  domicil  come 
within  International  Law.  In  so  far  as  they  bear  upon 
questions  of  belligerent  capture,  and  the  liability  of  the 
domiciled  alien  to  war-burdens  both  personal  and  pecuniary, 
they  clearly  belong  to  the  province  of  the  publicist,  and  we 
shall  discuss  them  when  we  come  to  consider  the  Law  of 
War.2  But  in  so  far  as  they  deal  with  a man’s  private 
rights  and  obligations,  they  seem  to  be  outside  the  bounda- 

1 Westlake,  Private  International  Law , §§  243,  253.  ‘2  See  § 177. 


200 


RIGHTS  AND  OBLIGATIONS 


ries  of  our  subject,  though  many  authors  go  into  them  at 
length  under  the  head  of  what  is  called  Private  International 
Law.1  We  will  briefly  indicate  the  chief  matters  to  which 
they  apply;  and  it  will  be  evident  from  our  enumeration 
that  the  domiciled  alien  is  to  a very  large  extent  under  the 
jurisdiction  of  the  country  in  which  he  resides. 

The  lex  domicilii  determines  all  matters  of  personal  status 
which  are  not  purely  political,  it  regulates  the  succession 
to  personal  property  in  cases  of  intestacy,  it  settles  the 
validity  of  any  will  relating  to  personalty,  and  it  decides 
upon  capacity  to  enter  into  ordinary  contracts,  and  even 
upon  capacity  to  marry  in  England,  the  United  States,  and 
Teutonic  countries  generally.2  The  law  of  France,  how- 
ever, regards  this  last  as  part  of  the  status  of  a French  citi- 
zen, and  considers  it  to  be  attached  to  him  wherever  he  may 
go,  as  long  as  he  retains  his  French  citizenship.  Marriages 
contracted  by  Frenchmen  abroad  must  therefore  be  entered 
into  with  all  the  forms  required  by  the  law  of  France,  if 
they  are  to  be  valid  in  France.3 

F or  testamentary  and  most  other  purposes  a man  can  have 
but  one  domicil;  but  for  commercial  purposes  and  for  pur- 
poses of  belligerent  capture  he  may  have  more  than  one, 
since  he  may  reside  in  one  country  and  have  a house  of 
trade  in  another,  or  be  a partner  in  several  firms  situated  in 
different  countries.  When  a foreigner  is  domiciled  in  a 
belligerent  country  his  property  therein  is  subject  to  the 
risks  of  war,  but  he  cannot  be  compelled  to  serve  in  the 
army  of  the  state  in  which  he  resides.  The  question 
whether  he  may  be  forcibly  enrolled  in  the  Militia  or 
National  Guard  is  more  doubtful.  In  the  American  Civil 
War  Great  Britain  seemed  content  that  her  subjects  domi- 
ciled in  the  territory  of  the  Republic  should  serve  in  the 
local  militia;  and  in  one  case,  that  of  Scott,  she  declined  to 

1 See  § 6. 

2 Bar,  Private  International  Law,  §§  90  et  seq. 

3 Wheaton,  International  Law  (Dana’s  ed.),  151  and  note. 


CONNECTED  WITH  JURISDICTION. 


201 


interfere  to  prevent  an  enrolment  in  the  fighting  forces. 
But  Scott  had  declared  his  intention  of  becoming  a natural- 
ized American  subject,  and  of  adhering  to  the  United  States 
if  war  had  broken  out  at  the  time  of  the  Trent  affair; 1 and 
probably  it  was  thought  that  a citizen  whose  allegiance  sat 
so  lightly  upon  him  had  little  claim  for  consideration  from 
his  native  state.  Certain  it  is  that  a vigorous  protest  was 
addressed  to  the  Government  of  the  Southern  Confederacy 
against  its  practice  of  regarding  British  subjects  domiciled 
within  its  territory  as  liable  to  conscription.  There  is  a 
clear  distinction  between  the  maintenance  of  social  order, 
which  may  well  be  required  of  every  one  who  lives  under 
the  protection  of  the  local  laws,  and  the  furtherance  of 
political  ends,  which  ought  only  to  be  asked  of  those  who 
are  members  of  the  body  politic.  The  recognition  of  this 
principle  would  lead  in  practice  to  the  rule  that  foreigners 
resident  in  the  country  might  be  required  to  serve  in  any 
local  force  raised  for  defending  life  and  property  against  the 
enemies  of  society,  but  could  not  be  compelled  to  serve  in 
the  army  or  militia.2  Any  state  might  without  offence 
declare  that  it  would  insist  upon  the  application  of  this  rule 
to  its  subjects  domiciled  abroad.  There  are  in  fact  a con- 
siderable number  of  treaties  in  existence  whereby  the  con- 
tracting powers  provide  that  their  subjects  domiciled  in  each 
other’s  territory  shall  not  be  called  upon  for  war-services. 
The  Commercial  Treaty  of  1871  between  the  United  States 
and  Italy  contains  stipulations  to  that  effect,3  and,  among 
the  leading  powers  of  Europe,  Great  Britain,  France 
and  Russia  have  been  parties  to  such  agreements.  It  is 
hardly  possible  to  say  that  the  rule  in  question  is  part  of 
the  common  law  of  nations;  but  it  seems  in  a fair  way  to 
become  so,  since  opinion  and  practice  are  turning  strongly 
in  its  favor.  An  attempt  made  by  Nicaragua  in  October, 

1 Halleck,  International  Law  (Baker’s  ed.),  I.,  361,  note. 

2 Hall,  International  Law,  § 61. 

8 Treaties  of  the  United  States,  p.  582. 


202 


EIGHTS  AND  OBLIGATIONS 


1893,  to  amend  its  Constitution  so  as  to  make  foreigners 
liable  to  extraordinary  burdens,  and  even  military  service, 
produced  immediate  action  on  the  part  of  the  resident 
Minister,  of  the  United  States  and  was  abandoned  in  con- 
sequence. 

§ H8. 

Aliens,  even  though  they  are  not  domiciled  in  a state,  may 
come  under  its  laws  and  jurisdiction  to  a certain  limited 
extent  when  within  it  as  Travellers  passing 
throughus’terri-0  through  its  Territory.  Such  persons  are  under 
its  criminal  jurisdiction  for  breaches  of  the 
peace  and  other  offences  against  person  and  property  com- 
mitted within  its  dominions  ; and  any  contracts  they  made 
could  be  enforced  by  process  directed  against  their  persons, 
as  well  as  against  any  property  they  might  possess  in  the 
state  in  question.  But  their  political  rights  could  be  in  no 
way  affected  by  their  temporary  sojourn  within  the  borders 
of  a foreign  state. 

§ 119- 

Things  as  well  as  persons  are  under  the  jurisdiction  of 
the  state  within  whose  territory  they  are  found.  The  most 
Rules  relating  to  important  of  them  is  Real  Property , which  may 
t’huigs ^thin  the  be  roughly  said  to  consist  of  houses  and  lands, 
territory.  and  immovables  generally.  For  all  purposes 

of  testamentary  and  intestate  succession,  of  contracts  and 
of  legal  proceedings,  the  law  of  the  country  where  it  is  situ- 
ated, the  lex  loci  rei  sitae , applies  to  it.1  We  have  seen  that 
the  rule  as  to  Personal  Property , or  movables,  is  that  the 
lex  domicilii  of  the  owner  prevails  ; but  in  the  vast  majority 
of  cases  the  lex  domicilii  is  also  the  law  of  the  country  in 
which  the  property  is  situated.  It  does,  however,  some- 
times happen  that  a man  owns  personal  property  in  one 

1 Phillimore,  Commentaries,  Vol.  IV.,  Ch.  xxviii.  ; Bar,  Private  Inter- 
national Law,  § 220. 


CONNECTED  WITS  JURISDICTION. 


203 


country  while  he  is  domiciled  in  another.  In  such  cases 
the  law  of  the  latter  prevails.  But  this  rule  is  not  entirely 
without  qualification.  It  seems,  for  instance,  that,  if  the 
owner  dies,  the  tribunals  of  the  state  where  the  property 
is  situated  will  assist  their  own  citizens  to  recover  debts,  and 
that  stocks  must  be  transferred  according  to  the  lex  sittis.1 
There  is  one  sort  of  movable  of  so  important  and  exceptional 
a kind,  that  International  Law  sets  it  as  it  were  in  a class 
by  itself,  and  applies  special  rules  to  it.  We  refer  to  ships. 
A state’s  authority  over  its  own  ships , both  public  and  private, 
in  its  waters  is  absolute.  Its  jurisdiction  extends  to  their 
crews  also.  Those  of  public  vessels,  being  in  the  service  of 
the  state,  are,  of  course,  wholly  and  entirely  under  its  con- 
trol ; those  of  merchant  vessels  come  within  the  territorial 
jurisdiction,  even  as  regards  seamen  of  foreign  nationality. 
Foreign  merchant  vessels  within  the  ports  and  territorial 
waters  of  a state  are  subject  to  the  local  law  and  the  local 
jurisdiction.  By  coming  within  the  territorial  waters  of  a 
friendly  power  they  put  themselves  for  the  time  being  under 
the  authority  of  that  power.  All  criminal  acts  done  on 
board  them  are  justiciable  by  its  tribunals,  the  ministers 
of  its  justice  have  full  power  to  enter  them  and  make  arrests, 
and  the  crews  are  subject  to  the  local  law  when  on  board 
their  vessels  as.  well  as  when  on  shore.  This  proposition 
follows  necessarily  from  the  conception  of  territorial  sov- 
ereignty, as  was  clearly  seen  by  Mr.  Marcy  when,  as  Amer- 
ican Secretary  of  State  in  1855,  he  wrote  to  Mr.  Clay,  “ As 
a general  rule  the  jurisdiction  of  a state  is  exclusive  and 
absolute  within  its  own  territories,  of  which  harbors  and 
territorial  waters  are  as  .clearly  a part  as  the  land.  ’ ’ 2 France, 
however,  draws  a distinction  between  two  classes  of  acts 
done  on  board  a foreign  merchant  ship  in  one  of  her  ports. 
If  the  act  concerns  members  of  the  crew  only  and  does  not 

1 Wheaton,  International  Law , § 136;  Phillimore,  Commentaries , Vol. 
IV.,  Cli.  xxviii. 

2 Wharton,  International  Law  of  the  United  States,  § 35  a. 


204 


RIGHTS  AND  OBLIGATIONS 


take  effect  outside  the  vessel,  she  exercises  no  jurisdiction 
over  it.  If  it  concerns  members  of  the  crew  and  other  indi- 
viduals, or  takes  effect  outside  the  vessel  to  the  danger  of 
the  peace  or  health  of  the  port,  she  will  take  cognizance 
of  it.  It  is  sometimes  claimed  that  this  rule  is  International 
Law  ; but  it  is  not  based  upon  general  or  long-continued 
usage,  nor  is  it  a logical  deduction  from  any  universally 
admitted  principle.  On  the  contrary  it  restricts  in  some 
measure  the  application  of  the  fundamental  principle  of  ter- 
ritorial sovereignty.  Yet  it  has  many  recommendations. 
It  limits  the  sphere  of  local  authority  to  the  necessities  of 
local  security,  and  leaves  the  interior  discipline  and  economy 
of  the  vessel  to  be  regulated  by  the  laws  of  its  own  country, 
thus  giving  effect  to  the  jurisdiction  of  each  state  in  the 
sphere  which  seems  naturally  and  properly  to  belong  to  it. 
The  French  rule  or  a modification  of  it  has  been  received 
with  much  favor  in  recent  times.  Some  states  have  refused 
to  exercise  authority  over  foreign  merchantmen  in  their  ports 
in  cases  where  nothing  beyond  the  internal  economy  of  the 
vessel  Avas  concerned,  and  many  treaties  have  been  negotiated 
in  which  the  contracting  parties  bind  themselves  not  to  inter- 
fere on  board  one  another’s  vessels  in  their  ports,  unless  the 
peace  or  safety  of  the  neighborhood  is  threatened  or  some 
person  other  than  a member  of  the  crew  is  concerned.  Thus 
in  1866  the  United  States  refused  to  compel  the  seamen  on 
board  a British  merchant  ship  in  American  territorial  waters 
to  perform  their  duties  as  mariners,1  and  in  1870  they  entered 
into  a Consular  Convention  with  Austria,  folloAved  the  next 
year  by  one  with  the  German  Empire,  in  each  of  which  was 
embodied  the  rule  above  described,  with  the  further  proviso 
that  “ Consuls,  Vice-Consuls  or  Consular  Agents,  shall  have 
exclusive  charge  of  the  internal  order  of  the  merchant  ves- 
sels of  their  nation.”2  There  is  no  difficulty  in  carrying 
out  these  provisions  ; nor  does  a state  leave  the  door  open 

1 Wharton,  International  Law  of  the  United  States,  § 35. 

2 Treaties  of  the  United  States,  pp.  34,  366,  367. 


CONNECTED  WITH  JURISDICTION. 


205 


to  confusion  and  anarchy  by  refusing  to  exercise  jurisdiction 
in  certain  cases  over  foreign  merchant  vessels  in  her  ports. 
The  principle  of  territorial  sovereignty  and  territorial  juris- 
diction over-rides  that  of  the  authority  of  a state  over  its 
merchantmen,  when  the  two  conflict.  But  if  the  former  is 
not  enforced  the  latter  at  once  revives,  and  the  vessels  and 
crews  come  under  the  laws  of  their  own  country  to  the  exact 
extent  of  their  exemption  from  the  laws  of  the  country  in 
whose  waters  they  are  staying.  It  is  quite  possible  that 
French  practice  may  in  time  become  a rule  of  International 
Law.  At  present  its  application  has  to  be  secured  by  special 
treaty  stipulations. 

§ 120. 

The  second  of  our  fundamental  rules  on  the  subject  of 
jurisdiction  is  that  A state  has  Jurisdiction  oyer  All 
its  Ships  on  the  High  Seas.  For  no  pur-  ^ state  has  juris_ 
pose  can  the  complete  jurisdiction  of  a state  sMps°on°the  high8 
over  its  public  vessels  on  the  high  seas  be  over-  seas- 
ridden  or  qualified  by  any  exercise  of  authority  on  the  part 
of  another  state.  Even  the  right  of  search  does  not  apply 
to  them ; and  while  the  merchant  vessels  of  neutrals  must 
submit  to  be  overhauled  by  the  cruisers  of  both  belligerents, 
their  men-of-war  are  as  free  from  molestation  as  they  would 
be  in  time  of  profound  peace.  So  absolute  are  the  rights  of 
a state  over  its  public  ships  that  some  writers  have  sought 
to  account  for  them  by  the  statement  that  such  vessels  are 
floating  portions  of  the  territory  of  the  state  to  which  they 
belong.1  Obviously  this  is  a fiction ; but  under  the  name  of 
the  principle  of  exterritoriality  it  has  been  made  the  basis  of 
much  elaborate  reasoning,  and  has  been  very  influential  in 
the  development  of  theories  of  immunity  from  territorial 
jurisdiction.  We  shall  meet  it  again  in  connection  with 
other  subjects.  Here  it  is  sufficient  to  say  that  the  position 
accorded  by  International  Law  to  public  vessels  rests  upon 

1 e.y.  Hautefeuille,  Droits  des  Nations  Neutres,  1.,  253-255. 


206 


RIGHTS  AND  OBLIGATIONS 


considerations  of  convenience  and  utility  and  receives  ample 
support  from  the  practice  of  civilized  states.  There  is  no 
need  to  invent  a fiction  in  order  to  account  for  it,  when  we 
remember  that  a public  vessel  is  under  the  command  of  the 
government  of  the  country  to  which  she  belongs,  and  that  to 
allow  any  other  authority  to  detain  her  upon  the  high  seas 
would  he  to  derogate  from  its  sovereignty  and  interfere  with 
the  due  performance  of  its  orders.  Moreover  the  fiction  is 
mischievous  as  well  as  unnecessary.  It  proves  a great  deal 
too  much;  for  if  a ship  of  war  were  really  a portion  of  the 
territory  of  the  state  which  owns  her,  the  health  laws  and 
port  regulations  of  any  other  state  could  under  no  circum- 
stances be  applied  to  her,  whereas  we  shall  see,  when  we 
come  to  consider  the  immunities  of  public  vessels  in  foreign 
ports,1  that  in  them  the  local  regulations  about  such  matters 
must  he  obeyed. 

With  regard  to  merchant  vessels  on  the  high  seas , Inter- 
national Law  lays  down  that  each  state  exercises  jurisdiction 
over  its  own,  and  possesses  no  authority  over  those  of  other 
nations,  except  that  in  time  of  war  its  cruisers  may  search 
them  and  capture  any  whose  proceedings  justify  seizure 
under  the  laws  which  regulate  the  conduct  of  neutrals. 
Jurisdiction  over  the  vessels  involves  jurisdiction  over  all 
persons  and  things  on  board,  including  foreigners  whether 
seamen  or  passengers.  And  this  power  carries  with  it  a 
corresponding  responsibility.  A state  is  bound  to  give 
redress  in  its  courts  for  wrongful  acts  done  on  board  its 
merchant  vessels  on  the  high  seas  against  foreigners,  and  is 
responsible  for  the  acts  of  any  such  ship  if  it  does  what  is 
illegal  by  International  Law,  except  in  the  case  of  Piracy 
which  is  justiciable  by  every  state,  and  of  those  offences 
against  neutrality  which  belligerents  are  permitted  to  deal 
with  themselves. 

The  question  of  a state’s  exclusive  jurisdiction  over  its 
merchant  vessels  was  involved  in  the  quarrel  between  Great 

1 See  § 129. 


CONNECTED  WITH  JURISDICTION. 


207 


Britain  and  the  United  States  at  the  beginning  of  the  pres- 
ent century.  It  arose  out  of  the  claim  of  the  former  to  take 
British  seamen  from  American  vessels  on  the  high  seas  and 
impress  them  for  the  royal  navy.  The  matter  was  compli- 
cated by  a dispute  concerning  the  doctrine  of  inalienable 
allegiance;  for  some  of  the  seamen  forcibly  taken  were  nat- 
uralized American  citizens,  whom  the  British  Government 
regarded  as  still  possessed  of  their  original  nationality.  The 
main  point  at  issue,  however,  was  whether  one  state  had  a 
right  to  execute  its  laws  within  the  merchantmen  of  another 
engaged  in  navigating  the  open  ocean.  To  this  all  other 
questions  were  subsidiary.  Side  issues  arose,  such  as  the 
pressing  need  of  Great  Britain  for  seamen,  her  right  to  call 
upon  all  her  subjects  for  aid  in  the  great  struggle  with  Napo- 
leon, the  provocative  conduct  of  some  American  skippers 
who  hovered  outside  British  ports  and  made  their  vessels 
places  of  refuge  for  British  deserters,  the  extent  of  the  right 
of  search,  and  the  theory  of  the  indelible  character  of  citizen- 
ship; but  the  kernel  of  the  controversy  was  the  question  of 
jurisdiction.  There  can  be  no  doubt  that  Great  Britain  was 
wrong.  Her  claim  was  in  direct  conflict  with  admitted 
principle.1  It  led  to  the  War  of  1812  between  the  two  kin- 
dred nations;  but  the  Treaty  of  Ghent,  which  closed  the 
struggle  in  1814,  was  silent  as  to  the  matter  in  dispute. 
After  the  great  European  peace  of  1815  Great  Britain  gave 
up  the  practice  of  impressing  seamen  for  her  navy,  and  thus 
incidentally  removed  all  chance  of  a renewal  of  the  conflict. 
In  1842  Mr.  Webster  declared  in  his  correspondence  with 
Lord  Ashburton  that  the  United  States  would  not  in  future 
allow  seamen  to  be  impressed  from  American  vessels.  The 
claim  of  right  has  never  been  formally  abandoned  by  the 
British  Government ; but  modern  English  writers  regard  it 
as  indefensible,  and  it  is  not  likely  to  be  revived.2 

1 Phillimore,  Commentaries , Pt.  III.,  Ch.  xviii. 

2 Wharton,  International  Law  of  the  United  States,  § 331 ; Wheaton, 
History  of  the  Law  of  Nations,  Pt.  IV.,  § 35. 


208 


EIGHTS  AND  OBLIGATIONS 


§ 121. 

Our  third  fundamental  rule  is  that  A state  has  Limited 
Jurisdiction  over  its  Subjects  abroad.  This  jurisdic- 
tion is  personal,  and  it  cannot  as  a rule  be  exer- 

A state  has  Juris-  . 

diction  over  its  cised  unless  the  subjects  m question  come  within 

subjects  abroad.  , ' A 

the  territorial  or  maritime  jurisdiction  of  the 
state  to  which  they  belong.  All  civilized  powers  regard  as 
punishable  at  home  grave  political  offences  against  them- 
selves committed  by  their  subjects  while  resident  abroad  ; 
and  sometimes  the  more  heinous  crimes  are  looked  upon  in 
the  same  way,  if  they  have  not  been  already  dealt  with  by 
the  state  in  whose  territory  they  took  place  and  if  the  crimi- 
nals are  not  subject  to  extradition.  Crimes  committed  by 
subjects  on  board  foreign  vessels  are  placed  in  the  same  cate- 
gory with  crimes  committed  on  foreign  territory.  The  juris- 
diction claimed  in  these  cases  is  a mixture  of  the  personal 
and  the  territorial.  It  is  personal  in  that  the  authority  to 
take  notice  of  the  act  and  regard  it  as  a crime  is  derived 
from  the  personal  tie  of  allegiance  subsisting  between  the 
doer  and  the  state  ; it  is  territorial  in  that  no  arrest  can  be 
made  or  punishment  inflicted  until  the  offender  has  come 
within  the  state’s  territory  or  on  board  one  of  its  vessels. 
Instances  of  purely  personal  jurisdiction  are  to  be  found 
when  a state  authorizes  the  establishment  of  a magistracy 
in  barbarous  districts  bordering  on  its  possessions  but  neither 
owned  nor  protected  by  any  civilized  power.  Magistrates  so 
appointed  have  a personal  jurisdiction  over  subjects  of  the 
state  who  may  be  in  the  district  assigned  to  them,  but  they 
can  have  no  jurisdiction  over  others,  seeing  that  they  can 
claim  no  territorial  authority.  They  are  simply  sent  out 
into  the  wilderness  to  see  that  their  fellow-citizens  behave 
with  a reasonable  amount  of  propriety.  Their  authority  is 
an  emanation  from  the  personal  jurisdiction  of  the  state  over 
all  its  subjects  wherever  they  may  be  ; and  it  is  capable  of 
exercise  in  places  outside  the  dominions  or  protectorates  of 


CONNECTED  WITH  JURISDICTION. 


209 


any  civilized  power,  because  no  territorial  jurisdiction  exists 
there  to  override  it.  A good  example  of  the  assumption  of 
such  authority  is  to  be  found  in  the  British  Order  in  Coun- 
cil of  Aug.  13,  1877,  whereby  Great  Britain  set  up  courts 
having  authority  over  her  subjects  in  a large  number  of 
places  and  islands  in  the  Western  Pacific,  “the  same  not 
being  within  Her  Majesty’s  dominions  and  not  being  within 
the  jurisdiction  of  any  civilized  power.”  But  foreigners 
were  not  to  come  under  the  jurisdiction  thus  assumed  unless 
they  filed  in  court  a written  consent  obtained  from  the  com- 
petent authorities  of  their  own  nation.1 

§ 122. 

We  now  come  to  the  fourth  and  last  of  our  fundamental 
rules.  It  is  that  A state  has  Jurisdiction  over  all 
Pirates  seized  by  its  Vessels.  Piracy  is  . * . . T . 
an  offence  against  the  whole  body  of  civilized  "e'izedby 
states,  not  against  any  particular  one  of  them.  Its  vessels- 
It  is  a crime  by  International  Law  which  defines  it,2  and 
provides  that  the  death-penalty  may  be  inflicted  upon  those 
who  are  guilty  of  it.  It  is  invariably  connected  with  the 
sea,  which  is  under  no  territorial  jurisdiction,  and  it  is  justici- 
able by  any  state  whose  cruisers  can  capture  those  who  are 
guilty  of  it.  An  act  to  be  piratical  must  be  An  act  of  vio- 
lence adequate  in  degree ; but  it  need  not  necessarily  be  an 
act  of  depredation.  Generally  a pirate  is  merely  a robber  of 
the  vulgarest  and  cruelest  kind  ; but  there  have  been  cases 
in  which  acts  done  by  unauthorized  persons  for  political 
ends  have  been  regarded  as  piratical,  though  the  animus 
furandi  was  wanting  and  there  was  no  thought  of  indiscrim- 
inate aggression  upon  vessels  of  all  nations.  A single  act 
of  violence  will  suffice,  such,  for  instance,  as  the  successful 
revolt  of  the  crew  of  a vessel  against  their  officers.  If  they 

1 Hertslet,  Treaties , XIV.,  871-909. 

2 Wheaton,  International  Law  (Dana’s  ed.),  193,  note  83. 


210 


EIGHTS  AND  OBLIGATIONS 


take  the  ship  out  of  the  hands  of  the  lawful  authorities,  they 
become  pirates,  though  if  their  attempt  fails  and  lawful 
authority  is  never  superseded  on  board,  they  are  guilty  of 
mutiny  and  not  piracy.  Another  mark  of  a piratical  act  is 
that  it  must  be  An  act  done  outside  the  territorial  jurisdiction 
of  any  civilized  state.  Piracy  must  always  be  connected  with 
the  sea,  but  it  may  be  committed  by  descent  from  the  sea  as 
well  as  actually  upon  it.  Landing  on  an  unappropriated 
island  and  robbing  civilized  people  who  had  been  cast  ashore 
there,  or  were  engaged  in  trade  or  missionary  work  among 
the  natives,  would  be  piracy  if  done  by  the  crew  of  an  un- 
authorized sea-rover.  Hall  seems  to  hold  that  a descent 
from  the  sea  on  the  coast  of  a civilized  state  to  rob  and 
destroy  without  any  national  authorization  would  be  ac- 
counted a piratical  act  ; 1 but  surely  the  fact  that  the  crime 
was  committed  within  territorial  jurisdiction  would  make 
the  perpetrators  amenable  to  the  law  of  the  state,  not  to  the 
provisions  of  the  international  code.  The  last  mark  of  a 
piratical  act  is  that  it  must  be  An  act  the  perpetrators  of 
which  are  destitute  of  authorization  from  any  recognized  polit- 
ical community.  Acts  which  when  done  under  national 
authorization  are  lawful  hostilities,  are  piracy  when  done 
without  such  authorization  ; and  the  presence  of  two  or 
more  incompatible  authorizations  is  deemed  to  have  the 
same  effect  as  the  absence  of  any.  Thus  if  in  time  of  war 
a vessel  obtains  a commission  from  each  belligerent  and 
depredates  impartially  upon  the  commerce  of  both,  she  is  a 
pirate.  But  a cruiser  which,  having  a lawful  commission, 
goes  beyond  its  terms  and  makes  captures  not  authorized  by 
the  laws  of  war,  is  no  pirate  ; for  she  has  not  throAvn  off 
national  authority,  and  the  state  which  owns  her  is  responsi- 
ble for  her  misdeeds.  A commission  from  a community 
which  has  received  Recognition  of  Belligerency  but  not 
Recognition  of  Independence  is  sufficient  authorization  for 
such  acts  of  violence  as  are  allowed  to  belligerent  cruisers. 

1 International  Law,  § 81. 


CONNECTED  WITH  JURISDICTION. 


211 


But  if  the  community  fails  in  its  struggle  and  ceases  to 
exist  as  a separate  political  unit,  its  commissions  are  no 
longer  valid  and  acts  done  under  cover  of  them  become 
piratical  because  they  are  unauthorized.  These  points  were 
well  illustrated  by  the  career  of  the  Confederate  cruiser 
Shenandoah  at  the  close  of  the  great  American  civil  war. 
She  was  in  the  Antarctic  seas  when  Richmond  fell  and  the 
Confederacy  came  to  an  end  in  the  spring  of  1865.  Through 
the  summer  she  continued  to  make  depredations  on  Ameri- 
can vessels  around  Cape  Horn.  But  when  her  captain  gave 
up  his  ship  to  the  port  authorities  at  Liverpool  in  November, 
he  asserted  that  he  was  ignorant  of  the  extinction  of  his 
government  till  Aug.  2,  and  that  as  soon  as  he  obtained  the 
news  he  desisted  from  further  hostilities.  The  British  Gov- 
ernment believed  his  story  and  allowed  him  and  his  crew  to  go 
free,  while  the  vessel  was  given  up  to  the*  United  States.1 
There  was  some  doubt  at  the  time  with  regard  to  the  facts, 
but  none  as  to  the  law.  Had  it  been  clear  that  captures  were 
made  with  full  knowledge  of  the  downfall  of  the  Confed- 
eracy, the  Shenandoah  would  certainly  have  been  a pirate. 

It  has  been  argued  that  even  though  a revolted  political 
community  has  not  obtained  Recognition  of  Belligerency,  its 
commissions  must  be  held  to  protect  those  who  act  under 
them  at  sea  from  the  charge  of  being  pirates.2  But  the  case 
of  the  Huascar  seems  to  point  to  the  opposite  conclusion. 
In  1877  this  vessel,  whose  after  career  was  to  be  so  check- 
ered and  glorious,  revolted  from  the  government  of  Peru, 
and  while  on  a short  voyage  stopped  two  British  vessels  on 
the  high  seas  and  took  coals  from  one  and  Peruvian  officials 
from  the  other.  There  was  no  political  organization  at  her 
back,  no  provisional  government  to  give  her  a commission  ; 
no  province  was  in  insurrection ; no  other  ship  even  took  up 
her  cause.  She  was  solitary  in  her  movement ; and  the 
Peruvian  Government  disclaimed  responsibility  for  her  acts. 
Under  such  circumstances  Recognition  of  Belligerency  was 

1 British  State  Papers,  British  Case  presented  to  the  Geneva  Arbitrators , 
156-160.  2 Hall,  International  Law,  § 81. 


212 


RIGHTS  AND  OBLIGATIONS 


out  of  the  question  ; ancl  the  Huascar  could  only  he  regarded 
as  an  unauthorized  rover  of  the  seas.  The  English  admiral 
on  the  Pacific  station  declared  that  she  was  a pirate,  at  least 
as  far  as  British  subjects  and  property  were  concerned.  He 
endeavored  to  capture  her,  but  failed ; and  the  vessel  sur- 
rendered to  a Peruvian  squadron.  The  British  Government 
approved  the  conduct  of  Admiral  de  Horsey  in  the  face  of  a 
remonstrance  from  Peru  and  a debate  raised  by  the  opposi- 
tion in  the  House  of  Commons.1  They  were  asked  whether 
they  would  have  hanged  the  officers  and  crew  of  the  Huascar 
if  they  had  caught  them.  The  answer  is  that  they  would 
have  done  nothing  of  the  kind.  But  a refusal  to  inflict  the 
full  penalty  for  an  offence  does  not  prove  that  it  has  not 
been  committed.  Technically  the  Huascar  was  a pirate.2 
Practically  she  differed  toto  coelo  from  the  ordinary  robber  of 
the  seas.  Had  she  been  captured,  her  crew  would  have 
been  tried  and  in  all  probability  found  guilty,  and  then  have 
been  dismissed  with  a merely  nominal  punishment.  Techni- 
cal guilt  and  grave  moral  delinquency  are  not  always  con- 
joined, even  in  the  administration  of  ordinary  Criminal  Law ; 
and  there  is  no  cause  for  wonderment  or  hostile  criticism  if 
in  International  Law  there  is  sometimes  witnessed  a similar 
divorce  of  two  things  which  are  ordinarily  most  closely  con- 
nected. Piracy  is  committed  when  the  three  marks  we 
have  described  co-exist.  An  act  to  be  piratical  must  be 
an  act  of  adequate  violence,  it  must  be  committed  outside 
the  jurisdiction  of  a civilized  state,  and  it  must  possess  no 
national  authorization. 


1 British  State  Papers,  Peru , No.  1 (1887)  ; Hansard , 3d  Series , Yol. 
CCXXXVI.,  787-802. 

2 It  would  have  been  possible  to  justify  the  proceedings  against  the  Huas- 
car without  raising  the  question  of  piracy.  Such  a vessel  might  be  prevented 
by  force  from  interference  with  the  trade  of  third  parties,  and  yet  be  free 
from  attack  as  long  as  she  did  not  molest  them,  whereas  an  ordinary  pirate 
would  be  attacked  by  any  cruiser  who  felt  herself  strong  enough  to  make 
the  capture.  (See  the  author’s  paper  in  the  Journal  of  the  Royal  United 
Service  Institution  for  January,  1897.) 


CONNECTED  WITH  JURISDICTION. 


213 


§ 123- 

We  must  now  distinguish  between  Piracy  jure  gentium 
which  has  just  been  described,  and  offences  which  are 
designated  as  Piracy  by  Municipal  Law  and  by  Distinction  be- 
Municipal  Law  only.  Each  state  by  virtue  of  the  law  of  nations 
its  independence  can  regulate  its  criminal  code  Municipal  Law. 
in  the  way  which  seems  best  to  it;  and  if  it  chooses  in  the 
exercise  of  its  discretion  to  regard  certain  offences  as  Piracy 
which  are  not  so  regarded  by  International  Law,  it  is  acting 
within  its  rights.  Such  laws  bind  the  tribunals  of  the  state 
which  makes  them  and  have  coercive  force  within  its  juris- 
diction, but  no  further.  Even  if  the  laws  of  other  countries 
contain  similar  provisions,  each  law  can  take  effect  only 
within  the  sphere  of  the  authority  which  sets  it.  Without 
special  agreement  among  states,  none  can  arrest  or  punish 
subjects  of  the  others  for  offences  committed  outside  its  own 
jurisdiction,  even  though  they  are  regarded  as  offences  by 
the  law  of  the  state  to  which  the  offender  belongs.  This  is 
so  clear  that  no  attempt  has  been  made  to  assume  a kind  of 
international  jurisdiction  over  acts  declared  to  be  piracy  by 
Municipal  Law,  except  in  the  one  case  of  the  slave  trade. 
In  her  zeal  for  its  suppression  Great  Britain  instructed  her 
cruisers  to  stop  vessels  of  all  nations  suspected  of  being 
engaged  in  it.  In  1841,  the  United  States  complained  of 
the  molestation  of  American  merchantmen;  and  Lord  Pal- 
merston and  Lord  Aberdeen,  who  were  Foreign  Secretaries 
successively  in  the  latter  half  of  1841,  disclaimed  any  Right 
of  Search  in  time  of  peace,  but  insisted  upon  a Right  of 
Visit  in  order  to  discover  “whether  the  vessel  pretending 
to  be  American  and  hoisting  the  American  flag  be  bond  fide 
American.”  They  admitted  that  in  such  cases  the  vessel 
must  be  allowed  to  proceed,  even  if  she  was  a slaver,  but 
argued  that,  should  she  turn  out  to  be  a ship  of  some  country 
with  which  Great  Britain  had  a treaty  providing  for  mutual 
search  and  capture,  she  could  be  proceeded  against  accord- 


214 


EIGHTS  AND  OBLIGATIONS 


ing  to  its  stipulations.  Mr.  Webster  in  reply  pointed  out 
that  there  was  no  distinction  recognized  by  the  writers  on 
International  Law  between  a Right  of  Visit  and  a Right  of 
Search.  He  argued  that  a right  to  inquire  into  the  real 
nationality  of  the  vessel  visited  must,  if  it  were  to  be  effec- 
tive, include  a right  to  examine  her,  detain  her  and  overhaul 
her  papers.  This  was  what  was  usually  understood  by  the 
Right  of  Search,  which  was  a purely  belligerent  right  and 
could  not  be  exercised  in  time  of  peace.  If  the  claim  put 
forward  did  not  include  search,  it  amounted  to  no  more  than 
a right  of  approach  and  inquiry,  which  was  admitted  as  an 
incident  of  the  free  use  of  the  ocean,  with  the  proviso  that 
the  ship  thus  dealt  with  was  not  bound  to  lie  by  and  await 
the  approach.  The  Treaty  of  Washington  of  1842  put  an 
end  for  a time  to  the  controversy.  It  provided  .that  each 
country  should  maintain  a naval  force  on  the  coast  of  Africa 
“ to  enforce  separately  and  respectively,  the  laws,  rights,  and 
obligations  of  each  of  the  two  countries  for  the  suppression 
of  the  slave  trade.”  1 But  in  1858  the  question  cropped  up 
again  owing  to  the  examination  of  some  American  ships  by 
British  vessels  off  the  island  of  Cuba.  The  United  States 
Government  at  once  made  complaints;  and  Lord  Malmes- 
bury, who  was  then  Foreign  Secretary  of  Great  Britain, 
abandoned  the  claim  on  the  advice  of  the  law  officers  of  the 
crown.2  This  incident  may  be  held  to  have  put  beyond 
possibility  of  doubt  the  doctrine  that,  agreement  apart, 
there  is  no  Right  of  Search  in  time  of  peace,  even  for  such 
an  excellent  purpose  as  the  putting  down  of  the  slave 
trade. 

§ 124. 

The  suggestion  of  the  United  States  made  in  1828  that 
the  slave  trade  should  be  declared  Piracy  jure  gentium  by 

1 Treaties  of  the  United  States,  p.  436. 

2 Halleck,  International  Law  (Baker’s  ed.),  II.,  268-282 ; Wharton, 
International  Law  of  the  United  States,  § 327. 


CONNECTED  WITH  JUKISDIOTION. 


215 


the  consent  of  the  civilized  world  was  never  carried  into 
effect.  The  onty  practical  course,  therefore,  for  those  states 
who  desired  to  put  down  the  traffic  was  to  The  slave  Trade 
adopt  the  British  policy  of  entering  into  treaty  law  of  nations. 

r x ^ ^ Attempts  to  put  it 

engagements  with  other  powers  for  the  conces-  down  by  treaty, 
sion  of  a mutual  Right  of  Search,  so  that  cruisers  of  one  party 
might  have  the  right  to  stop,  examine,  and  if  necessary  seize 
and  bring  in  for  trial,  merchantmen  of  the  other  suspected  of 
being  slavers.  But  considerations  of  the  sanctity  of  the  flag 
as  the  emblem  of  the  national  sovereignty,  and  a feeling  that 
the  Right  of  Search  was  in  its  nature  odious  and  should  be 
kept  within  the  strictest  limits,  often  prevailed  over  the  inter- 
ests of  humanity ; and  Great  Britain  had  great  difficulty  in 
securing  the  general  recognition  of  her  views.  The  two 
powers  most  hard  to  satisfy  were  the  United  States  and 
France.  The  former  would  not  concede  the  point  of  mutual 
search  till  1862,  and  her  treaty  of  that  year  with  Great 
Britain  confined  it  within  narrow  geographical  limits.1  The 
latter  denounced  in  1845  her  Conventions  of  1831  and  1833 
on  the  ground  that  they  allowed  search,  and  would  consent 
to  nothing  more  than  the  maintenance  of  a squadron  on  the 
coast  of  Africa  to  co-operate  with  British  cruisers  for  the 
purpose  of  suppressing  the  trade.  The  result  was  that 
the  traffic  in  slaves  flourished  under  the  protection  of  the 
French  flag.  Arab  dhows  could  easily  obtain  from  a French 
Consul  a license  which  conferred  upon  them  a French 
nationality.  They  were  then  safe  from  capture  even  if  their 
decks  were  crowded  with  slaves.  The  utmost  a British 
officer  could  do,  and  this  rather  on  sufferance  than  by  right, 
was  to  send  a boat  and  demand  to  have  the  ship’s  papers 
shown  over  the  side  of  the  vessel.  If  they  appeared  to  be 
in  proper  form,  he  was  obliged  to  let  her  pass  unmolested, 
because  the  flag  she  flew  protected  her  from  search  and 
seizure.  The  abolition  of  slavery  in  the  various  American 
Republics,  and  in  Cuba,  has  put  an  end  to  the  West  African 
1 Treaties  of  the  United  States,  p.  455. 


216 


RIGHTS  AND  OBLIGATIONS 


slave  trade  ; but  the  traffic  still  flourishes  on  the  east  coast 
of  Africa,  though  it  is  beginning  to  feel  the  effect  of  the 
vigorous  measures  taken  in  late  years  to  suppress  it.  The 
last  and  most  far-reaching  of  these  is  the  great  International 
Convention  of  1890,  which  was  the  Final  Act  of  a Confer- 
ence of  representatives  of  all  civilized  powers  called  by  Bel- 
gium at  the  suggestion  of  Great  Britain.1  Difficulties  arose 
with  regard  to  its  ratification.  .The  French  legislature  de- 
murred owing  to  the  modified  Right  of  Search  granted  by 
it,  and  the  Senate  of  the  United  States  took  the  ground  that 
it  did  not  wish  America  to  be  mixed  up  in  European  and 
African  arrangements.  But  the  various  objections  have 
been  overcome  or  reserved  for  future  settlement.  France 
ratified  in  January,  1892,  on  the  understanding  that  the 
maritime  measures  were  subject  to  ulterior  modification ; 
and  the  Senate  of  the  United  States  sanctioned  the  agree- 
ment in  February  of  the  same  year,  appending  to  its  formal 
ratification  a declaration  that  it  did  not  thereby  express 
approval  of  the  protectorates  and  other  territorial  arrange- 
ments referred  to  in  the  clauses.  By  the  middle  of  1892  the 
Convention  had  received  the  formal  assent  of  the  civilized 
world.2 

This  important  international  agreement  attacks  the  evil 
on  land  as  well  as  at  sea,  and  thus  marks  a new  epoch  in 
the  history  of  the  attempts  to  destroy  the  slave  trade.  It 
is  a most  elaborate  document,  divided  into  chapters  and  sec- 
tions, and  a large  part  of  it  would  have  been  impossible  had 
not  the  interior  of  Africa  been  opened  to  the  influence,  and 
in  some  degree  to  the  dominion,  of  civilized  powers.  We 
can  give  but  a very  brief  outline  of  its  provisions.  It  stipu- 
lates for  measures  of  repression  to  be  carried  out  by  each  of 
the  signatory  powers,  in  the  African  territory  over  which  it 
possesses  either  sovereignty  or  a protectorate.  Stations  and 
fortified  ports  are  to  be  established  from  time  to  time  as  the 

1 British  State  Papers,  Africa,  No.  7 (1890). 

2 Ibid.,  Treaty  Series,  No.  7 (1892). 


CONNECTED  WITH  JURISDICTION. 


217 


country  is  opened  up,  and  armed  cruisers  are  to  be  placed 
on  inland  lakes  and  navigable  waters.  The  importation  and 
sale  of  firearms  and  ammunition  is  to  be  put  under  stringent 
restrictions  in  a zone  extending  over  the  greater  part  of  the 
continent  and  including  the  islands  within  a hundred  miles 
of  the  coast.  Within  this  zone  the  traffic  in  intoxicating 
liquors  is  to  be  prohibited  or  severely  restricted.  Such  of 
the  signatory  powers  as  allow  domestic  slavery  are  to  pro- 
hibit the  importation  into  their  territories  of  African  slaves. 
A great  International  Information  Office  is  to  be  established 
at  Zanzibar,  with  branches  at  other  African  ports  : and  in 
it  are  to  be  concentrated  documents  of  all  kinds  with  regard 
to  the  progress  of  the  work  of  exterminating  the  slave  trade 
under  the  Convention,  while  by  means  of  it  a constant  inter- 
change of  information  is  to  take  place  between  the  powers 
concerned.  With  regard  to  measures  of  repression  con- 
nected with  the  sea,  a great  Maritime  Zone  is  created,  cov- 
ering the  western  part  of  the  Indian  Ocean  from  Madagascar 
to  the  coasts  of  Beloochistan.  Within  this  zone  a very 
limited  Right  of  Search  is  granted  to  one  another  by  the 
signatory  powers.  Vessels  suspected  of  being  engaged  in 
the  traffic  are  to  be  handed  over  to  a court  of  their  own 
country  for  trial ; and  in  case  of  condemnation  the  slaves 
are  to  be  set  at  liberty  and  the  captain  and  crew  punished 
according  to  their  offence.  Native  vessels  are  not  to  receive 
authorizations  to  carry  the  flag  of  one  of  the  contracting 
parties  for  more  than  a year  at  a time,  and  their  owners  must 
be  subjects  of  the  power  whose  flag  they  apply  to  carry,  and 
enjoy  a good  character,  especially  as  regards  the  slave  trade. 
The  authorization  is  to  be  forfeited  at  once  if  acts  or  at- 
tempted acts  of  slave  trading  are  brought  home  to  the  cap- 
tain or  owner.  Lists  of  the  crew  and  of  negro  passengers 
are  to  be  delivered  at  the  port  of  departure  by  the  captain 
of  the  vessel  to  the  authority  of  the  power  whose  flag  it  car- 
ries, and  the  authority  is  to  question  both  seamen  and  pas- 
sengers as  to  the  voluntary  nature  of  their  engagement. 


218 


RIGHTS  AND  OBLIGATIONS 


These  lists  are  to  be  checked  at  the  port  of  destination  and 
at  all  ports  of  call.  Certified  copies  of  all  authorizations  and 
notices  of  the  withdrawal  of  authorizations  are  to  be  sent 
to  the  International  Information  Office  at  Zanzibar.  Slaves 
detained  on  board  a native  vessel  against  their  will  can 
claim  their  liberty,  and  any  slave  taking  refuge  on  board  a 
vessel  bearing  the  flag  of  one  of  the  signatory  powers  is  to 
be  set  free. 

There  can  be  no  doubt  that  these  provisions  are  calculated 
to  strike  a harder  blow  at  the  African  slave  trade  than  any 
it  has  hitherto  received.  Many  of  them  must  be  regarded 
for  the  present  and  for  some  time  to  come  more  as  counsels 
of  perfection  than  as  imperative  commands.  No  power  can 
patrol  the  whole  of  such  immense  and  largely  unexplored 
regions  as  have  lately  been  appropriated  in  Africa  by  various 
states.  But  trade,  and  with  it  geographical  knowledge  and 
power  of  control,  is  advancing  with  great  rapidity,  and  we 
may  fairly  demand  that  serious  efforts  to  put  down  the  cap- 
ture of  slaves  in  the  interior  will  follow  in  its  wake.  It 
would  be  too  great  a strain  upon  credulity  to  be  expected  to 
believe  in  the  sincerity  of  one  or  two  of  the  contracting 
parties.  As  long  as  a demand  for  slaves  exists  in  Turkey, 
Turkish  officials  will  connive  at  its  supply  in  spite  of  the 
treaty  engagements  of  their  country.  The  difficulty  of  erad- 
icating domestic  slavery  from  Oriental  society  is  enormous, 
and  till  the  task  has  been  completed  the  slave  trade  will  not 
entirely  cease.  Another  barrier  to  success  is  found  in  the 
hysterical  sentiment  which  deems  the  national  flag  dishon- 
ored should  search  be  made  beneath  it  by  agents  of  another 
power,  even  though  in  consequence  of  their  abstention  it 
is  used  to  cover  the  foulest  of  human  wrongs.  Probably 
the  railway  will  be  a more  potent  agent  in  the  eradication  of 
the  evil  than  any  international  agreement.  It  will  develop 
legitimate  trade ; and  when  the  Arab  slave  hunters  find  that 
far  more  profit  is  to  be  made  from  it  than  from  kidnapping 
their  fellow-creatures,  they  will  leave  their  cruel  pursuit  for 


CONNECTED  WITH  JURISDICTION. 


219 


other  and  more  legitimate  avocations.  But  the  possibility  of 
the  gradual  extinction  of  the  slave  trade  in  the  future  does 
not  absolve  civilized  states  from  the  duty  of  abating  it  in 
the  present.  They  are  morally  bound  to  use  all  the  means 
in  their  power  for  the  diminution  of  so  great  a curse  ; and 
it  is  to  be  hoped  that  the  pressure  of  enlightened  opinion 
will  keep  every  government  to  the  strenuous  performance  of 
the  duties  it  has  undertaken  by  signing  the  great  anti-slavery 
Convention. 

§125. 

We  have  now  gone  through  the  general  and  admitted 
rules  as  to  a state’s  jurisdiction,  with  the  exception  of  those 
which  concern  the  powers  exercised  by  bellig-  The  claim  to 

. ......  . , . J urisdiction  over 

erents  over  neutral  individuals  to  restrain  and  foreigners  for 

...  . c,  ii-ii  i i offences  commit- 

pumsh  violations  of  the  rules  laid  down  by  the  ted  abroad, 
law  of  neutrality.  These  will  be  best  discussed  when  we 
come  to  that  portion  of  our  subject.  But  before  we  pass  on 
to  the  exceptions  to  ordinary  jurisdictional  rights,  we  must 
consider  a class  of  cases  in  which  jurisdiction  is  sometimes 
assumed  by  states,  though  it  is  to  say  the  least  very  doubt- 
ful whether  they  are  justified  in  doing  so.  There  are  pro- 
visions in  the  laws  of  many  countries  whereby  certain  crimes 
committed  by  foreigners  within  foreign  jurisdiction  are  made 
justiciable  in  their  courts.  Thus  France,  Germany  and 
Austria  punish  foreigners  who  have  committed  abroad  crimes 
against  the  safety  of  the  French,  German  or  Austrian  state; 
and  some  powers,  such  as  Russia  and  Italy,  go  further  and 
punish  offences  against  their  individual  subjects,  such  as 
murder,  arson,  and  forgery,  though  committed  in  a foreign 
country  by  persons  of  foreign  nationality.1  Of  course  the 
offenders  cannot  be  tried  and  punished  unless  they  come 
within  the  territory  of  the  aggrieved  state.  But  we  may 

1 For  the  law  of  most  civilized  nations  on  this  subject,  see  the  Report  of 
the  American  Department  of  State  on  Extraterritorial  Crime  and  the  Cutting 
Case,  pp.  38-53. 


220 


RIGHTS  AND  OBLIGATIONS 


well  share  the  doubts  of  Wheaton,1  Hall,2  Westlake,3  and 
other  authorities  as  to  the  existence  of  any  right  of  jurisdic- 
tion in  such  cases.  A state  has  authority  over  foreigners 
within  its  territory,  not  over  foreigners  abroad.  An  attempt 
to  punish  an  alien  within  the  territory  for  an  offence  com- 
mitted before  he  came  to  it  is  an  attempt  to  exercise  juris- 
diction over  acts  done  in  another  state,  and  is  thus  contrary 
to  the  very  principle  of  territorial  jurisdiction  on  which  it 
is  nominally  based.  In  similar  cases  a state  can  punish  its 
own  citizens  ; but  its  right  to  do  so  is  based  upon  the  per- 
sonal claim  it  has  to  their  allegiance  wherever  they  may  be. 
There  is  no  personal  tie  in  the  case  of  aliens  ; and  it  may 
justly  be  contended  that  any  attempt  to  exercise  over  them 
such  jurisdiction  as  we  are  considering  would  give  good 
ground  for  remonstrance  from  the  state  of  which  they  were 
subjects.  If  the  offences  in  question  are  grave  crimes,  the 
perpetrators  may  be  surrendered  by  extradition  to  the 
authorities  of  the  country  where  the  wrong  was  done.  If 
they  are  small  matters,  there  is  no  need  to  notice  them.  It 
is  true  that  most  states  refuse  to  extradite  political  offenders  ; 
hut  diplomatic  complaint  will  usually  secure  the  exercise  on 
the  part  of  a government  of  watchfulness  to  prevent  its  soil 
being  made  the  scene  of  conspiracies  against  the  political 
institutions  of  other  countries.  In  any  case  an  occasional 
failure  of  justice  is  preferable  to  putting  the  subjects  of 
every  state  at  the  mercy  of  the  law  and  administration  of 
its  neighbors.  This  view  has  been  pressed  and  acted  upon 
in  several  recent  cases,  notably  in  the  controversy  between 
the  United  States  and  Mexico  with  regard  to  Mr.  Cutting, 
who  was  arrested  and  imprisoned  in  Mexico  in  1886  for  an 
alleged  offence  committed  in  Texas  against  a Mexican  citi- 
zen. The  Government  of  Washington  demanded  his  release, 
which  was  granted  after  some  delay.  From  the  vigorous 
action  taken  by  the  American  authorities  on  this  occasion, 

1 International  Law,  § 113.  2 International  Law , § 62. 

3 Annuaire  cle  VInstitut  de  Droit  International  for  1880,  pp.  50  et  seq. 


CONNECTED  WITH  JURISDICTION. 


221 


it  is  evident  that  the  United  States  is  deeply  committed  to 
the  view  we  have  ventured,  to  enunciate.1 

§ 126. 

It  will  be  remembered  that,  when  we  claimed  for  a state 
jurisdiction  over  all  persons  and  all  things  within  its  terri- 
tory, we  stated  that  there  were  a few  exceptions.  We  will 
now  proceed  to  enumerate  them.  First  among  those  who 
when  in  a foreign  country  are  not  subject  to  ordinary  rules 
come 

Foreign  sovereigns  and  their  suites. 

When  the  head  of  a state  is  visiting  a foreign  country  or 
travelling  through  it  in  his  official  capacity,  he  and  his  effects 
are  exempt  entirely  from  the  local  jurisdiction.  Exceptions  t0  or_ 
He  cannot  be  proceeded  against  civilly  or  crimi-  junction  a^i)Ut 
nally  and  his  immunities  in  this  respect  are  fi^sind  the7r 
shared  by  his  attendants.  If  he  conspires  sultes' 
against  the  state,  or  permits  his  suite  to  do  any  acts  against 
its  safety,  or  harbors  criminals  and  refugees  in  the  resi- 
dence assigned  to  him,  he  may  be  sent  out  of  the  territory, 
but  he  cannot  be  tried  and  punished  within  it.  He  may  not, 
however,  exercise  any  jurisdiction  of  his  own  within  the 
state  he  is  visiting.  If  any  serious  and  urgent  cases  arise 
among  his  retinue,  they  must  be  sent  home  for  trial.  All 
immunities  vanish,  should  a sovereign  travel  incognito  as 
a private  person;  but  he  can  at  any  time  regain  them  by 
appearing  in  his  official  character.  If  the  same  person  is 
both  ruler  and  ruled,  as  the  present  Duke  of  Edinburgh  is 
sovereign  in  Saxe-Coburg-Gotha  and  subject  in  England, 
he  would  not  be  allowed  to  escape  from  any  obligations  that 
might  accrue  to  him  while  resident  in  the  country  in  which 
he  was  subject  by  pleading  that  he  was  sovereign  in  another 
country. 

1 Report  of  the  Department  of  State  on  Extraterritorial  Crime  and  the 
Cutting  Case , 1887. 


222 


RIGHTS  AND  OBLIGATIONS 


* > § 127' 

Next  in  our  list  of  those  who  are  free  from  local  jurisdic- 
tion come 

j Diplomatic  agents  of  foreign  states. 

When  an  accredited  representative  of  a foreign  power  is 
residing  in  the  country  to  which  he  is  sent,  or  travelling 
Exceptions  to  or-  through  it  or  any  other  friendly  country  on  his 

dinary  rules  about  . , . , , , , . ™ 

jurisdiction.  (2)  way  to  or  from  his  post,  he  and  his  eftects  are 

Diplomatic  agents  . . , . . 

of  foreign  states,  m the  main  free  from  the  local  jurisdiction. 
The  members  of  his  official  suite  have  similar  immunities ; 
and  the  inviolability  attached  to  the  person  of  the  ambassa- 
dor is  held  to  extend  itself  to  his  wife  and  children,  and  to 
those  members  of  his  household  who,  though  not  possessed 
of  the  diplomatic  character,  are  necessary  for  his  convenience 
and  comfort.  We  shall  discuss  the  question  of  diplomatic 
immunity  at  some  length  when  we  come  to  deal  with  the 
subject  of  Legation  and  Negotiation;  but  we  allude  to  it 
here  in  order  to  show  that  the  privileges  accorded  to  ambas- 
sadors are  exceptions  to  the  ordinary  rules  concerning  state 
authority. 

§ 128. 

Among  those  whose  privileged  position  entitles  them  to 
exemption  from  the  jurisdiction  of  a friendly  power  when 
they  come  within  its  territory,  we  must  give  a prominent 
place  to 

The  public  armed  forces  of  foreign  states. 

We  will  first  consider  the  case  of  land  forces  and  then 
discuss  the  extent  of  the  immunities  of  sea  forces.  It  is 
Exceptions  to  or-  necessary  to  separate  the  two  because  the  rules 
Jurisdiction3,  with  regard  to  them  differ.  The  universally 

forces*5 of  foreign  recognized  rule  of  modern  times  is  that  a state 
states‘  must  obtain  express  permission  before  its  troops 

can  pass  through  the  territory  of  another  state,  though  the 


CONNECTED  WITH  JURISDICTION. 


223 


contrary  opinion  was  held  strongly  by  Grotius 1 and  his  views 
continued  to  influence  publicists  till  quite  recently.  Permis- 
sion may  be  given  as  a permanent  privilege  by  treaty  for 
such  a purpose  as  sending  relief  to  garrisons,  or  as  a special 
favor  for  the  special  occasion  on  which  it  is  asked.  The 
agreement  for  passage  generally  contains  provisions  for  the 
maintenance  of  order  in  the  force  by  its  own  officers,  and 
makes  them,  and  the  state  in  whose  service  they  are,  respon- 
sible for  the  good  behavior  of  the  soldiers  towards  the  in- 
habitants. In  the  absence  of  special  agreement  the  troops 
would  not  be  amenable  to  the  local  law,  but  would  be  under 
the  jurisdiction  and  control  of  their  own  commanders. 

With  regard  to  ships  of  war,  no  special  permission  is 
required  before  they  can  enter  the  ports  of  a friendly  state. 
Freedom  of  entry  is  assumed  unless  the  local  sovereign 
makes  an  express  declaration  to  the  contrary,  which  he  can 
do  on  assigning  good  reasons.  But  in  case  of  war  he  must 
treat  both  belligerents  alike,  and  not  admit  the  vessels  of 
one  while  excluding  those  of  the  other.  Exclusion  is, 
however,  very  rare.  The  tacit  permission  to  enter  implied 
by  the  absence  of  any  attempt  to  prevent  entry  is  freely 
accorded,  and  is  now  held  to  carry  with  it  a more  or  less 
complete  exemption  from  the  authority  of  the  local  sover- 
eign. The  accepted  principle  of  modern  times  is  that  juris- 
diction, is  waived  when  entry  is  allowed.  But  it  must  be 
admitted  that  this  broad  doctrine  is  of  recent  growth.  In 
1794  Attorney-General  Bradford  gave  an  opinion  in  the  case 
of  a British  sloop  of  war,  out  of  which  six  American  citizens 
were  taken  by  the  local  authorities  while  she  was  lying  in 
the  harbor  of  Newport,  Rhode  Island.  On  the  case  being 
referred  to  him  by  the  Government  of  Washington,  he  replied 
that  ‘ ‘ the  laws  of  nations  invest  the  commander  of  a foreign 
ship  of  war  with  no  exemption  from  the  jurisdiction  of  the 
country  into  which  he  comes.”2  A similar  opinion  was 

1 Be  Jure  Belli  ac  Pads,  II.,  II.,  xiii. 

2 Opinions  of  Attorneys- General  of  the  United  States , I.,  47. 


224 


RIGHTS  AND  OBLIGATIONS 


given  in  1799  by  Attorney-General  Lee  in  the  case  of  the 
British  packet  Chesterfield , as  to  which  he  declared,  “It  is 
lawful  to  serve  civil  or  criminal  process  upon  a person  on 
board  a British  ship  of  war  lying  in  the  harbor  of  New 
York,”1  and  argued  that  due  respect  to  the  country  visited 
involved  obedience  to  such  process.  These  views  were  by 
no  means  confined  to  American  lawyers.  They  seem  to  have 
been  held  by  authorities  of  the  highest  repute  in  England. 
Thus  in  1820  Lord  Stowell  was  asked  by  the  British  Gov- 
ernment for  an  opinion  upon  the  case  of  John  Brown,  a 
British  subject  who,  having  escaped  from  a prison  into 
which  he  had  been  thrown  by  the  Spaniards  for  aiding  their 
revolted  American  colonies,  took  refuge  on  the  British  war- 
ship Tyne , lying  in  the  harbor  of  Callao,  and  claimed  the 
protection  of  the  flag.  In  his  reply  the  great  English  jurist 
not  only  declared  that  the  captain  of  the  British  vessel  had 
no  right  to  protect  Brown,  but  added  “I  am  led  to  think 
that  the  Spaniards  would  not  have  been  chargeable  with 
illegal  violence,  if  they  had  thought  proper  to  employ  force 
in  taking  this  person  out  of  the  vessel.”  2 

Such  doctrines  as  these  would  reduce  the  immunities  of 
a public  vessel  almost  to  vanishing  point.  They  would 
never  probably  have  been  acquiesced  in  on  the  continent 
of  Europe,  and  even  while  they  were  being  uttered  in  Eng- 
land and  America  a strong  counter-current  of  opinion  made 
itself  manifest  in  quarters  entitled  to  the  utmost  respect. 
Thus  in  1810  Chief  Justice  Marshall,  in  delivering  the  judg- 
ment of  the  Supreme  Court  of  the  United  States  in  the 
famous  case  of  the  Exchange?  took  occasion  to  discuss  the 
whole  subject  of  the  exemption  of  public  ships  in  foreign 
ports  from  the  local  jurisdiction.  He  placed  permission  to 
enter  upon  the  ground  of  implied  license,  and,  after  point- 
ing out  that  a ship  of  war  could  not  do  her  duty  to  her 

1 Opinions  of  Attorneys-General  of  the  United  States,  I.,  91. 

2 Halleck,  International  Law  (Baker’s  ed.),  I.,  188. 

8 Cranch,  Reports  of  the  U.S.  Supreme  Court,  VII.,  116. 


CONNECTED  WITH  JURISDICTION. 


225 


sovereign  if  she  were  subject  to  the  interference  of  another 
authority,  he  went  on  to  say,  “The  implied  license,  there- 
fore, under  which  such  a vessel  enters  a friendly  port  may 
reasonably  be  construed,  and  it  seems  to  the  court  should 
be  construed,  as  containing  an  exemption  from  the  jurisdic- 
tion of  the  sovereign  within  whose  territory  she  claims  the 
rites  of  hospitality.”  On  this  great  judgment  the  doctrine 
now  most  widely  held  both  in  America  and  in  Great  Britain 
is  based.  In  1855  during  the  Crimean  War  the  British 
cruiser  President  captured  a Russian  vessel  called  the  Sitka 
and  brought  her  into  the  harbor  of  San  Francisco  with  a 
prize-crew  on  board.  The  local  courts  issued  a writ  of 
Habeas  Corpus  to  try  the  validity  of  the  detention  of  two 
of  the  prisoners.  Process  was  served,  but  the  commander 
of  the  Sitka  immediately  departed  without  obeying  it.  The 
opinion  of  Attorney-General  Cushing  was  taken  upon  the 
case.  He  commended  the  captain  for  departing  and  thus 
avoiding  unprofitable  controversy,  and  took  occasion  to  say 
that  the  courts  of  the  United  States  had  “adopted  unequiv- 
ocally the  doctrine  that  a public  ship  of  war  of  a foreign 
sovereign  at  peace  with  the  United  States,  coming  into  our 
ports  and  demeaning  herself  in  a friendly  manner,  is  exempt 
from  the  jurisdiction  of  the  country.”  1 This  view  is  shared 
by  British  and  American  writers  of  repute  and  by  almost  all 
the  international  jurists  of  Continental  Europe.  Indeed  it 
may  be  said  to  have  been  adopted  by  the  publicists  of  the 
civilized  world.  Ortolan,  the  only  one  among  them  who 
by  reason  of  his  career  as  a naval  officer  is  able  to  speak 
from  practical  experience,  is  most  emphatic  in  his  assertion 
of  immunity.2  This  consensus  of  opinion  outweighs  en- 
tirely the  views  of  a few  great  English  lawyers  and  one  or 
two  continental  jurists  who  still  cling  to  the  ancient  doc- 
trine ; and  recent  practice  is  in  entire  accord  with  it.  Ships 
of  war  everywhere  claim  and  everywhere  receive  exemption 

1 Opinions  of  Attorney s-General  of  the  United  States , VII.,  122. 

2 Diplomatic  de  la  Jler,  Livre  II.,  Ch.  X. 

Q 


226 


RIGHTS  AND  OBLIGATIONS 


from  the  local  jurisdiction.  If  International  Law  is  to  be 
deduced  from  practice,  the  controversy  on  this  point  is  at 
an  end. 

§ 129. 

But  though  exemption  is  the  general  rule,  we  shall  find 
on  an  examination  of  the  usages  of  states  that  it  is  not  abso- 
Exemption  of  pub-  *ute  and  complete.  Being  based  upon  conven- 
stateefnethe°teni-  ience  it  is  limited  by  convenience  ; and  extreme 
S nntlwfiftfl’  inconvenience  would  obviouslv  result  if  ships 

and  complete.  Qf  war  in  foreign  ports  were  at  liberty  to  dis- 
regard ordinary  harbor  regulations  and  sanitary  precautions. 
The  local  authorities  can  enforce  all  reasonable  health  and 
port  regulations  ; and,  if  the  visiting  vessel  is  a belligerent, 
they  may  compel  it  to  observe  neutrality  regulations,  and 
may  detain  and  try  any  prizes  it  has  brought  into  the  port, 
should  there  be  good  reason  to  believe  that  the  captures 
were  made  in  violation  of  their  neutrality.  It  is  further 
clear  that  a state  may  prevent  the  cruisers  of  another  state 
from  enforcing  their  revenue  laws  in  its  waters.  These  ex- 
ceptions to  the  ordinary  rule  are  amply  sufficient  to  demon- 
strate the  falsity  of  the  theory  that  a ship  of  war  is  for  all 
legal  purposes  a floating  portion  of  the  territory  of  the  state 
to  which  she  belongs.  If  she  were  anjdhing  of  the  kind, 
she  could  in  no  way  be  made  amenable  to  the  local  juris- 
diction. 

§ 13°- 

The  immunities  granted  to  public  vessels  while  lying  in 
the  territorial  waters  of  friendly  states  ought  not  to  be 
The  case  of  poiiti-  abused.  A ship  of  war  is  a floating  fortress 
and°fu^itiveS  charged  with  the  duty  of  protecting  the  inter- 

ests of  her  country  wherever  she  may  be  sent. 
To  turn  her  into  an  asylum  for  fugitive  criminals  is  a gross 
perversion  of  the  purpose  for  which  she  was  commissioned 
by  her  own  sovereign,  as  well  as  a gross  insult  to  the  sover- 
eign in  whose  waters  she  is  staying.  Any  captain  proved 


CONNECTED  WITH  JURISDICTION. 


227 


to  be  guilty  of  it  ought  to  be  dismissed  from  the  service 
without  ceremony.  Even  when  a criminal  has  succeeded  in 
taking  refuge  on  board  without  the  connivance  of  the  com- 
mander, he  should,  if  possible,  be  given  up  on  demand 
unless  his  offence  be  political.  But  the  demand  should  be 
made  diplomatically,  not  to  the  captain,  who  has  no  author- 
ity to  hold  an  extradition  court  on  board  his  vessel  and 
decide  whether  the  alleged  offender  should  be  surrendered 
or  not.  Still  less  should  any  attempt  be  made  by  the  local 
authorities  to  arrest  the  fugitive  on  board  the  foreign  vessel 
of  war.  They  have  no  power  to  enforce  their  law  under  its 
flag,  and  a commander  who  in  such  a case  repelled  force  by 
force  would  be  acting  within  his  duty.  The  best  course  to 
take  when  a fugitive  criminal  is  found  on  board,  is  to  expel 
him  at  once.  He  can  be  turned  out  of  the  vessel  into  which 
he  entered  without  right,  though  the  captain  cannot  suffer 
him  to  be  arrested  while  on  board  or  entertain  any  demand 
for  his  surrender;  and  when  he  has  been  set  on  shore,  the 
local  authorities  can  deal  with  him.  Political  offenders  are 
held  to  differ  from  ordinary  criminals,  and  the  great  pre- 
ponderance of  modern  opinion  and  practice  is  in  favor  of 
their  reception.  But  even  in  their  case  the  commanders  of 
public  vessels  are  bound  to  refrain  from  offering  asylum  and 
aiding  escape.  If  a political  refugee  in  danger  of  losing  life 
or  liberty  is  able  to  reach  a foreign  man-of-war  lying  in  the 
waters  of  the  country  whose  authorities  are  seeking  to  secure 
him, 'he  may  be  allowed  to  come  on  board,  and  must  be  pro- 
tected against  arrest.  This  is  the  rule  of  Great  Britain  and 
America,  and  most  civilized  states  concur  in  it.  It  applies 
also  to  the  case  of  a political  offender  who  escapes  to  some 
other  country,  and,  having  come  on  board  in  its  waters,  is 
taken  by  the  vessel  into  a port  of  the  country  in  which  his 
offence  was  committed.  But  it  should  be  noted  that  mer- 
chant vessels  can  offer  no  asylum  to  offenders  of  any  kind. 
However  unjust  the  local  law  may  be,  however  tyranni- 
cal the  government,  however  laudable  resistance  to  its  au- 


228 


EIGHTS  AND  OBLIGATIONS 


thority,  no  safe  place  of  refuge  can  be  found  on  board  a 
foreign  merchantman  in  its  ports.  The  local  law  applies  to 
them;  they  are  under  the  local  jurisdiction;  and  the  local 
authorities  may  enter  them  and  arrest  any  of  their  subjects 
they  may  find  there.  But  in  November,  1893,  when  the 
Costa  Rica , an  American  mail  steamer,  was  fired  upon  at 
Amapala,  Honduras,  because  her  captain  refused  to  deliver 
up  General  Bonilla,  a political  refugee  who  was  a passenger 
on  board,  the  United  States  protested  against  the  act  as 
wanton  and  illegal,  and  demanded  an  apology.  The  Govern- 
ment of  Honduras  promptly  disavowed  the  conduct  of  its  offi- 
cers and  expressed  sincere  regret  at  the  occurrence.1  This 
case  tends  to  show  that,  in  the  opinion  of  at  least  one  of  the 
great  powers  of  the  world,  a private  vessel  may  not  be  fired 
upon  under  the  circumstances  indicated,  though  she  may  be 
searched  and  must  submit  to  have  the  refugee  taken  out  of  her. 

The  case  of  fugitive  slaves  has  raised  a considerable 
amount  of  difficulty,  especially  in  Great  Britain.  There 
can  be  no  doubt  that  during  the  prevalence  of  that  older 
view  of  the  law  which  reduced  to  very  small  proportions  the 
immunities  of  public  vessels  in  foreign  waters,  slaves  who 
escaped  to  British  vessels  lying  in  the  ports  of  countries 
where  slavery  was  legal  were  given  up  to  the  local  author- 
ities.2 But  the  growth  of  opinion  in  favor  of  the  modern 
doctrine  of  exemption  except  for  a few  well-defined  purposes 
coincided  with  the  deepening  of  the  feeling  against  slavery; 
and  a great  outcry  arose  in  England  when  in  1875  it  was 
discovered  that  the  British  Admiralty  had  issued  a circular 
directing  captains  of  the  Queen’s  ships  to  surrender  fugitive 
slaves  who  came  on  board  their  vessels  in  the  territorial 
waters  of  states  which  authorize  slavery.  The  Government 
appointed  a Commission  to  investigate  the  subject;  and,  after 
receiving  its  report,  withdrew  the  first  circular  and  published 
a second,  which  directed  naval  officers  in  the  circumstances 

1 Statement  issued  by  the  Department  of  State,  Nov.  12,  1893. 

2 Report  of  the  British  Fugitive  Slave  Commission,  1875. 


CONNECTED  with  jurisdiction. 


229 


just  described  not  to  receive  a slave  on  board  unless  his  life 
was  in  manifest  danger,  and  not  to  keep  him  on  board  after 
the  danger  was  passed,  but  to  entertain  no  demand  for  his 
surrender  nor  enter  into  any  examination  as  to  his  status.1 
This  placed  the  larger  part  of  the  burden  of  responsibility 
on  the  captains  who  had  to  deal  with  the  cases;  but  it  made 
clear  the  adhesion  of  Great  Britain  to  the  doctrine  of  the 
immunity  of  the  public  vessel  from  local  authority,  which  had 
been  strenuously  maintained  by  the  international  lawyers 
who  were  members  of  the  Commission  and  as  strenuously 
denied  by  their  colleagues.  Though  a state  is  forbidden, 
except  in  the  cases  we  have  enumerated,  to  execute  its  laws 
on  board  foreign  men-of-war  lying  in  its  harbors,  it  is  not 
left  without  remedies  if  it  deems  itself  aggrieved  by  the 
proceedings  of  such  vessels.  It  can  demand  the  extradition 
of  the  fugitives,  it  can  complain  diplomatically,  it  can  order 
the  offending  vessel  to  quit  its  waters,  and  it  can  refuse  to 
receive  into  its  ports  in  future  any  public  vessels  of  the 
same  nationality. 

The  immunities  of  which  we  have  been  speaking  do  not 
follow  the  members  of  the  ship’s  company  when  they  land. 
In  their  ship  and  in  its  boats,  which  are  appurtenant  to  it 
and  share  its  privileges,  they  are  exempt  from  the  local 
jurisdiction ; but  the  moment  they  set  foot  on  shore  they 
come  under  the  authority  of  the  state,  and  may  be  arrested 
and  tried  like  other  foreigners  if  they  commit  crimes  or 
create  disturbances. 

§ 131. 

The  remaining  exception  from  ordinary  rules  with  regard 
to  territorial  jurisdiction  occurs  in  the  case  of 

Subjects  of  Western  states  resident  in  Eastern  countries. 

It  rests  on  special  agreement,  and  not,  like  those  we  have 
been  considering  hitherto,  on  the  common  law  of  nations. 

1 British  Fugitive  Slave  Circular  of  Dec.  5,  1875,  § 93  C. 


230 


RIGHTS  AND  OBLIGATIONS 


It  is  insisted  upon  owing  to  the  defective  character  of 
Oriental  administration  of  justice  and  the  dependent  posi- 
tion assigned  to  Christians  bjr  the  sacred  code  of 

Exceptions  to  or-  T ■»  r ■ . . , 

dinary  rules  about  Islam.  In  consequence  ot  these  considerations 
subject^ofVeso  the  Christian  states  have  obtained  bv  treaty  ex- 
in  Eastern  coun-  emption  from  the  local  jurisdiction  for  their  sub- 
jects resident  in  Turkey,  the  Barbary  States, 
China,  Japan,  Siam,  and  other  parts  of  the  East  still  remain- 
ing under  native  rule.  By  Conventions  with  these  powers 
authority  over  Europeans  and  Americans  resident  within 
their  territories  is  given  to  Consular  Courts.  Thus  Con- 
suls, who  among  the  Western  nations  are  merely  commer- 
cial agents,  exercise  in  Oriental  states  important  judicial 
functions,  and  possess  large  immunities  conferred  on  them 
for  the  protection  of  tlieir  countrymen.  Their  jurisdiction 
is  both  civil  and  criminal.  The  manner  of  its  exercise 
depends  on  the  law  of  the  country  to  which  each  Consul 
belongs  and  on  treaty  stipulations  between  that  country  and 
others.  Generally  subjects  of  the  local  sovereign  who  may 
commit  any  crime  against  subjects  of  a foreign  state  resident 
in  their  country  are  dealt  with  by  the  local  tribunals ; but 
subjects  of  a foreign  state  who  may  be  charged  with  crim- 
inal offences  against  natives  are  tried  in  the  Consular  Courts 
of  their  own  nation.  In  cases  which  arise  between  subjects 
of  different  foreign  nationalities  the  aggrieved  person  can, 
in  the  absence  of  special  treaty  regulations,  seek  redress  in 
the  Consular  Court  of  the  country  whose  subject  has  done 
the  wrong  ; and  if  two  subjects  of  the  same  foreign  nation 
stand  to  one  another  in  the  relation  of  accuser  and  accused, 
the  case  is  tried  in  the  court  to  whose  authority  both  of 
them  are  subject.  In  civil  matters  questions  which  arise 
between  a foreigner  and  a native  are  generally  settled  by 
a tribunal  in  which  agents  of  both  the  foreign  and  the  native 
state  have  a voice.  When  two  or  more  foreigners  of  the 
same  nationality  are  the  parties  to  the  suit  it  is  tried  in  their 
own  Consular  Court ; and  when  the  dispute  is  one  between 


connected  with  jurisdiction. 


231 


foreigners  of  different  nations  it  goes  to  the  Consular  Court 
of  the  defendant’s  country.  As  a rule  there  is  an  appeal 
in  civil  cases  of  great  importance  to  the-  superior  tribunals 
of  the  Consul’s  country ; and  in  criminal  cases  the  highest 
sentences  cannot  be  passed  without  the  ratification  of  the 
home  authorities.  Sometimes  it  is  arranged  that  persons 
charged  with  grave  crimes  should  be  sent  home  for  trial. 
In  order  to  gain  the  protection  of  a Consul  in  the  East  it 
is  necessary  for  subjects  of  the  state  he  represents  to  register 
themselves  at  the  Consulate.  Registration  of  the  head  of 
a family  implies  registration  of  all  members  of  the  family 
living  under  the  same  roof.  Throughout  the  Turkish 
Empire  England  has  a network  of  Vice-Consular  and 
Consular  Courts  culminating  in  the  Court  of  the  Consul- 
General  at  Constantinople.  Their  authority,  and  the  author- 
ity of  her  Consular  Courts  in  other  countries,  is  derived 
from  the  Foreign  Jurisdiction  Act  of  1843  and  Orders  in 
Council  made  in  pursuance  of  it.  The  authority  of  the 
Consular  Courts  of  the  United  States  rests  upon  an  Act 
of  Congress  passed  in  1860.  But  it  must  be  noted  that 
these  acts  and  similar  laws  of  other  civilized  and  Christian 
powers  could  give  no  jurisdiction  within  the  dominions  of 
Oriental  states,  were  it  not  for  the  treaties  whereby  the 
right  to  establish  Consular  Courts  is  expressly  granted  by 
the  local  sovereigns.1  In  Egypt  the  Consular  system  was 
superseded  in  1876,  after  negotiationsextending  over  nearly 
ten  years,  by  a system  of  Mixed  Tribunals  commonly  called 
International  Courts.  The  judges  of  these  courts  are  partly 
natives  and  partly  foreigners,  the  majority  always  belonging 
to  the  latter  category.  Their  powers  and  functions  are  reg- 
ulated by  an  elaborate  code ; and  the-  appointment  of  the 
judges  rests  with  the  Egyptian  administration,  which  is, 
however,  bound  in  selecting  the  foreign  members  of  the 
courts  to  act  on  the  recommendation  of  their  respective  gov- 

1 Note  on  Consuls  in  Treaties  of  the  United  States,  pp.  1279-1285  ; Halleck, 
International  Law  (Baker’s  ed.),  Ch.  XI. 


232 


RIGHTS  AND  OBLIGATIONS 


ernments.  Fourteen  powers,  including  the  United  States, 
have  assented  to  these  arrangements,1  which  are  said  to  work 
much  better  than  the  old  Consular  Courts.  They  have  been 
prolonged  from  time  to  time,  the  last  occasion  being  in 
January,  1894. 

There  can  be  no  doubt  that  abuses  are  likely  to  arise,  owing 
to  the  large  immunities  given  under  the  Consular  system  to 
subjects  of  Christian  states  in  Oriental  countries  and  the 
powerlessness  of  the  local  sovereign  to  enforce  any  authority 
over  them.  We  have  but  to  imagine  a case  in  some  remote 
district  far  from  the  influence  of  civilized  public  opinion, 
where  the  protected  subject  is  a rascal  and  the  local  Consul 
careless  or  unscrupulous,  to  see  what  grave  injustice  might 
be  done  without  the  possibility  of  redress.  Some  states 
allow  their  Consuls  to  naturalize  foreigners  with  great  ease; 
and  it  is  said  that  half  the  scoundrels  of  the  Levant  find  it 
convenient  to  escape  from  the  local  jurisdiction  in  Morocco 
and  the  outlying  parts  of  the  Turkish  Empire  by  obtaining 
some  foreign  nationality,  under  cover  of  which  they  cheat 
and  plunder  the  natives  with  impunity.  Too  much  care 
cannot  be  exercised  by  self-respecting  Christian  states  in 
such  matters.  They  must  in  the  interests  of  their  own  peo- 
ple insist  on  some  system  of  immunity;  but  they  should  not 
allow  what  is  necessary  to  protect  their  subjects  to  become 
a means  for  the  oppression  of  the  subjects  of  the  local  sov- 
ereign. When  countries  hitherto  governed  by  native  rulers 
of  the  Oriental  type  pass  under  the  sway  of  Christian  and 
civilized  powers,  one  of  their  first  cares  is  to  abolish  the 
Consular  Courts,  so  that  they  may  become  in  reality  masters 
in  their  own  dominions;  and  the  states  who  possess  treaty 
rights  to  maintain  such  courts  usually  make  no  difficulty  in 
renouncing  them.  Thus  when  France  in  1881  established 
over  the  Tunisian  Regency  a protectorate  which  differed 
only  in  name  from  complete  annexation,  she  commenced 

1 Holland,  The  European  Concert  in  the  Eastern  Question , pp.  102,  103, 
128-147. 


CONNECTED  WITH  JURISDICTION. 


233 


negotiations  with  the  powers  who  had  what  is  called  Con- 
sular Capitulations  with  Tunis,  and  was  able  in  1884  to  super- 
sede the  Consular  Courts  by  French  judges.1 

§ 132. 

We  have  now  to  consider  the  subject  of  Extradition,  which 
may  be  defined  as  The  surrender  by  one  state  to  another  of  an 
individual  who  is  found  within  the  territory  of  Extradition  A 
the  former , and  is  accused  of  having  committed  a t^granuun'the'1 
crime  within  the  territory  of  the  latter.  Such  obliging^ totrdoty 
surrenders  are  usually  made  in  pursuance  of  80' 
treaty  obligations,  though  there  are  not  wanting  cases  where 
criminals  have  been  given  up  in  the  absence  of  any  stipula- 
tion on  the  subject.  The  earliest  Extradition  Treaty  on 
record  was  negotiated  about  thirteen  hundred  years  before 
Christ  between  Rameses  II.,  King  of  Egypt  (the  Pharaoh  who 
knew  not  Joseph),  and  Khitasir,  King  of  the  Khita.  It  pro- 
vided for  friendship  and  alliance  between  the  two  monarchs 
and  for  a strict  return  of  fugitives  from  one  another’s  domin- 
ions.2 But  the  example  set  at  so  remote  a period  has  not 
been  followed  to  any  extent  till  recent  times.  The  great 
mass  of  Extradition  Treaties  date  from  the  present  century 
and  even  from  its  latter  half.  They  have  been  rendered 
necessary  by  the  rapid  growth  of  intercourse  between  peo- 
ples and  the  great  preponderance  of  opinion  in  favor  of  the 
doctrine  that  crime  is  in  the  main  territorial. 

Writers  on  International  Law  have  differed  greatly  on 
the  question  whether  a state  is  bound  to  surrender  fugitive 
criminals  unless  it  has  contracted  to  do  so  by  treaty.  The 
majority  of  them  favor  the  negative  view,  and  the  same 
may  be  said  of  statesmen  and  judges.  Each  state  must 
decide  for  itself  whether  in  the  absence  of  treaty  stipula- 

1 Statesman's  Year  Book  for  1894 , p.  523;  Twiss,  Law  of  Nations,  I., 
§66. 

2 Burgsch,  Egypt  and  the  Pharaohs,  II.,  71-76. 


234 


RIGHTS  AND  OBLIGATIONS 


tions  it  will  give  up  criminals  or  not ; but  it  is  now  gener- 
ally admitted  that  a surrender  is  a matter  of  comity  and  not 
of  right.  There  is  no  rule  of  International  Law  commanding 
governments  to  return  to  one  another  fugitives  from  justice 
on  demand  from  the  country  where  the  crime  was  committed. 
The  practice  of  states  differs.  In  America  it  is  held  that  in 
the  absence  of  a treaty  there  is  no  law  which  authorizes  the 
President  to  deliver  up  any  one  charged  with  having  com- 
mitted a crime  in  the  territory  of  a foreign  nation,  or  at 
least  that  there  are  grave  doubts  as  to  his  right  to  do  so.1 
Surrender  was  made  in  1864  in  the  case  of  Arguelles,  who 
was  given  up  to  the  Spanish  authorities  for  a crime  of  a 
peculiarly  atrocious  character,  though  there  was  then  no 
Extradition  Treaty  with  Spain  ; and  on  that  occasion  the 
Senate  interfered  with  a request  to  be  informed  under  what 
authority  of  law  or  treaty  the  act  was  done.  Mr.  Seward, 
the  Secretary  of  State,  admitted  in  his  reply  that  the  United 
States  was  under  no  obligation  to  make  the  surrender,  and 
justified  his  action  on  the  grounds  of  comity  and  humanity. 
The  attempts  to  stop  the  surrender  failed,  but  the  question 
of  the  power  to  make  it  was  never  judicially  decided.2  The 
law  of  England  appears  to  be  strongly  against  surrender. 
It  is  held  that  the  common  law  gives  the  executive  no  power 
to  arrest  an  alien  and  deliver  him  to  a foreign  state.3  The 
Crown  has  a right  to  negotiate  Extradition  Treaties  ; but 
their  provisions  cannot  be  brought  into  effect  without  statu- 
tory authority.  The  Extradition  Act  of  1870  gives  the 
Crown  power  by  Order  in  Council  to  carry  into  effect  all 
Extradition  Treaties  made  in  accordance  with  its  terms  ; 
and  in  the  United  States  Statutes  passed  in  1848  and  1860 
enable  the  courts  to  act  under  duly  proclaimed  Extradition 
Treaties.  Thus  the  two  great  English-speaking  peoples 
have  adopted  practically  the  same  principles  in  this  im- 

1 Note  on  Extradition  in  Treaties  of  the  United  States,  pp.  1289  and  1291. 

2 Wheaton,  International  Law  (Dana’s  ed.),  p.  183,  note 

3 Clarke,  Extradition,  Ch.  V. 


CONNECTED  WITH  JURISDICTION. 


235 


portant  matter.  In  France,  on  the  other  hand,  the  received 
legal  doctrine  is  that  the  state  authorities  have  an  inherent 
right  to  surrender  fugitive  criminals  if  they  think  fit  to  do 
so,  and  the  French  view  finds  favor  in  most  civilized  coun- 
tries. Even  the  United  States  and  Great  Britain  do  not 
hesitate  to  take  advantage  of  it  ; and  ask  foreign  states  with 
whom  they  have  no  agreements  for  extradition  to  surrender 
on  the  ground  of  comity  fugitives  whom  they  would  not 
themselves  give  up  were  the  positions  of  the  countries  re- 
versed. Thus  in  October,  1893,  the  Government  of  Wash- 
ington obtained  from  Costa  Rica,  between  which  country 
and  America  there  is  no  Extradition  Treaty,  the  surrender 
of  a fugitive  named  Weeks  who  was  accused  of  embezzle- 
ment within  the  United  States.1 

§133. 

But  these  questions  of  the  common  law  of  nations  and 
the  limits  of  the  executive  authority  of  domestic  governments 
are  becoming  year  by  year  less  important,  owing  The  condition3 
to  the  almost  universal  adoption  of  Extradition  Extrad!tionrted 
Treaties  and  the  greatly  enlarged  list  of  crimes  Treaties' 
which  now  find  a place  within  them.  One  example  will 
suffice  to  show  the  immense  progress  made  in  this  latter 
matter  within  recent  times.  The  Extradition  Clauses  of 
the  Treaty  of  1842  between  the  United  States  and  Great 
Britain  made  mention  of  seven  crimes  for  which  surrender 
could  be  demanded,  but  to  these  seven  the  Convention  of 
1890  added  twenty  others.2  It  is  now  the  usual  custom 
to  embody  various  conditions  in  Extradition  Treaties  and 
to  refuse  to  give  up  an  offender  unless  they  are  complied 

1 Stephen,  History  of  the  Criminal  Law , II.,  66  ; Treaties  of  the  United 
States,  note  on  Extradition,  pp.  1289-1293 ; Wheaton,  International  Law 
(Boyd’s  ed.),  §§  116  a-116  e. 

2 Treaties  of  the  United  States,  p.437  ; British  State  Papers,  United  States, 
Ho.  1 (1890). 


236 


RIGHTS  AND  OBLIGATIONS 


with.  Reasonable  primd  facie  evidence  of  the  guilt  of  the 
accused  is  almost  invariably  insisted  upon ; and  it  is  clear 
that  great  injustice  might  result  if  a state  surrendered  fugi- 
tives on  the  mere  assertion  of  a foreign  government  that 
they  were  guilty  of  crime.  The  extraditing  state  does  not 
claim  to  try  the  accused  parties  and  find  them  guilty  before 
it  will  give  them  up,  but  it  requires  sufficient  evidence  to 
satisfy  its  own  tribunals  that  the  cases  are  genuine  and 
ought  to  be  tried.  Another  condition  generally  laid  down 
in  recent  treaties  is  that  the  individual  demanded  shall  not 
be  tried  for  any  offence  committed  prior  to  his  surrender, 
other  than  the  extradition  crime,  until  he  has  been  liberated 
and  lias  had  an  opportunity  of  leaving  the  country.  The 
object  of  this  proviso  is  to  guard  against  the  surrender  of  a 
person  for  one  offence  when  the  real  reason  for  demanding 
him  is  to  try  him  for  another,  possibly  a political  crime,  pos- 
sibly an  offence  not  mentioned  in  the  treaty.  The  condition 
is  perhaps  not  unreasonable  in  view  of  the  great  divergencies 
of  political  condition  and  theory  between  some  of  the  most 
powerful  states  of  the  civilized  world,  though  it  might 
easily  operate  in  favor  of  a criminal  whom  it  was  eminently 
desirable  to  punish.  It  is  embodied  in  the  Treaty  of  1890 
between  Great  Britain  and  the  United  States,  but  it  does 
not  appear  in  the  Treaty  of  1842.  The  British  Extradition 
Act  of  1870  declared  that  it  must  be  inserted  in  any  Ex- 
tradition Treaty  put  in  force  by  the  Crown.  Under  these 
circumstances  the  late  Earl  Derby,  when  Foreign  Secretary 
in  1876,  declined  to  surrender  the  forger  Winslow  and  other 
fugitives,  unless  the  American  Government  would  give  an 
undertaking  that  they  should  not  be  tried  for  any  offence 
other  than  that  for  which  their  extradition  was  demanded. 
The  United  States  declined  to  make  stipulations  and  assur- 
ances not  provided  for  in  the  treaty  which  then  governed 
the  situation.  For  some  time  neither  side  would  give  way 
and  in  consequence  several  fugitives  from  justice  escaped 
surrender.  But  towards  the  end  of  the  year  the  British 


CONNECTED  WITH  JURISDICTION. 


237 


Government  receded  from  its  untenable  position,  and  the 
American  administration  indicated  that  they  were  not  dis- 
posed to  try  extradited  offenders  for  any  crime  except  that 
which  had  caused  their  surrender.  The  matter  has  been  set 
at  rest  by  the  decision  of  the  Supreme  Court  in  the  case  of 
Rauscher,  who  was  brought  to  trial  for  the  cruel  and  un- 
usual punishment  of  a sailor,  his  extradition  having  been 
obtained  from  Great  Britain  on  a charge  of  murdering  the 
same  man.  In  18f6  the  court  quashed  the  proceedings  on 
the  ground  that  a fugitive  extradited  for  one  offence  could 
not  be  tried  for  another  until  opportunity  had  been  given 
him  to  return  to  the  country  which  had  surrendered  him.1 
This  decision  and  the  Convention  of  1890  have  placed  the 
matter  as  between  the  two  nations  beyond  the  slightest 
possibility  of  doubt. 

The  most  important  and  most  difficult  of  the  conditions  to 
be  found  in  most  modern  Extradition  Treaties  is  that  which 
forbids  surrender  if  the  offence  is  of  a political  character. 
There  is  no  agreement  among  states  as  to  the  nature  of  a 
political  offence  or  the  marks  which  differentiate  it  from 
other  offences.  Jurists  have  been  unable  to  set  forth  any 
uniform  doctrine;  and  when  cases  have  come  before  courts 
of  law,  the  judges  have  as  a rule  shirked  the  difficulty  of  a 
general  definition  and  been  content  to  determine  whether  or 
no  the  individual  before  them  was  a political  offender.  In 
some  instances  the  motive  has  been  deemed  the  all-important 
element ; and  if  it  was  political  it  protected  even  the  secret 
assassin  from  surrender.  In  others  it  has  been  declared  that 
the  connection  of  the  act  with  a political  movement  of  which 
it  formed  a part  gave  it  a political  character.  Thus  in  1890 
the  British  Court  of  Queen’s  Bench  refused  the  extradition 
of  a Swiss,  named  Castioni,  who  had  been  concerned  in  an 
insurrection  against  the  authorities  of  the  Canton  of  Ticino, 
in  the  course  of  which  he  had  shot  a fellow-citizen  during  an 

1 Treaties  of  the  United  States,  note  on  Extradition,  p.  1293;  Wharton, 
International  Law  of  the  United  States,  § 270. 


238 


EIGHTS  AND  OBLIGATIONS 


attack  upon  the  municipal  palace  at  Bellinzona.1  It  is  im- 
possible to  accept  either  view  as  quite  satisfactory.  One 
fails  to  see  why  rulers,  whether  republican  or  monarchical, 
should  be  preserved  like  game  for  the  battues  of  excited 
enthusiasts,  even  though  the  motives  of  those  who  attack 
them  are  public  and  political,  and  not  personal  and  self- 
regarding.  Nor  is  it  evident  that  every  act  of  violence  done 
in  connection  with  a political  movement,  or  even  in  further- 
ance of  it,  must  therefore  be  taken  out  of  the  category  of 
ordinary  crime.  Personal  grudges  and  political  hatreds 
often  go  hand  in  hand.  Motives  are  difficult  things  to 
fathom  at  the  best  of  times,  and  in  the  heat  and  turmoil 
of  a revolution  the  evidence  necessary  to  establish  their 
character  may  never  be  forthcoming.  What  is  wanted  is 
some  test  applicable  to  the  acts  themselves,  and  capable  of 
distinguishing  vulgar  and  detestable  crimes,  even  when  done 
against  political  personages  and  for  political  objects,  from 
the  honorable  efforts  of  noble  and  self-sacrificing  men  to 
free  their  country  from  what  they  honestly,  though  perhaps 
mistakenly,  regard  as  grievous  misrule.  May  not  a reference 
to  the  laws  of  war  supply  us  with  the  test  we  need?  As 
Sir  J.  E.  Stephen  points  out,  the  legal  quality  of  many 
and  many  an  act  differs  according  to  the  belligerent  or 
non-belligerent  condition  of  the  doer.2  What  is  levying  a 
requisition  in  one  case  is  committing  a robbery  in  the  other. 
Shooting  a man  in  action  during  war  would  be  murdering 
him  were  there  no  war.  But  all  things  are  not  lawful  in 
war.  Secret  assassination  is  forbidden,  as  also  are  poison- 
ing, the  ill-treatment  of  harmless  non-combatants,  plunder 
and  indiscriminate  destruction.  If  political  offences  were 
defined  as  Acts  done  for  political  objects , which  would  be 
alloived  by  the  laws  of  war  were  the  relation  of  belligerency 
established  between  the  doers  of  them  and  the  state  against 
tvhich  they  are  done , we  should  be  able  to  distinguish  between 

1 Law  Reports,  Queen's  Bench  Division,  1891,  pp.  149-168. 

- History  of  the  Criminal  Law,  II.,  70,  71. 


CONNECTED  WITH  JURISDICTION. 


239 


those  crimes  which  shock  the  conscience  of  humanity,  though 
the  perpetrators  of  them  are  actuated  by  political  motives, 
and  acts  which  bring  down  upon  the  doers  no  strong  moral 
condemnation,  though  we  may  think  them  violent  and  fool- 
ish. Under  the  suggested  definition  the  shooting  of  a sov- 
ereign at  a barricade  in  the  course  of  an  armed  insurrection 
would  be  a political  offence,  because  the  laws  of  war  make 
no  distinction  betweeen  sovereigns  and  other  combatants; 
but  the  destruction  of  a sovereign,  as  Alexander  II.  of 
Russia  was  destroyed,  by  bombs  suddenly  thrown  from 
what  seemed  a peaceful  crowd,  would  be  ordinary  murder, 
because  the  laws  of  war  do  not  allow  assassination  of  the 
enemy’s  rulers.  And  further,  dynamitards,  p^troleurs, 
bomb-throwers,  and  the  whole  tribe  of  secret  destroyers, 
would  not  be  able  to  obtain  safe  asylum  in  foreign  lands, 
for  their  methods  are  not  those  of  lawful  warfare ; while  at 
the  same  time  those  who  incited  to  open  rebellion,  or  took 
part  in  any  revolutionary  movement  which  used  the  ordinary 
methods  of  combat,  would  not  render  themselves  liable  to 
be  surrendered  as  criminals.  Whatever  may  be  the  merits 
or  demerits  of  the  test  we  have  proposed,  it  is  highly  desira- 
ble that  a test  of  some  sort  should  be  generally  adopted. 
As  matters  stand  a nation  does  not  know  what  it  assents  to 
when  it  admits  the  political  offender  clause  into  its  Extradi- 
tion Treaties.  States  naturally  and  properly  endeavor  to 
guard  against  being  made  the  agents  of  the  political  pur- 
poses of  neighbors  with  whose  modes  of  government  they 
may  have  no  sympathy.  But  in  the  attempt  to  do  so  they 
must  be  careful  not  to  protect  the  enemies  of  civilization 
itself. 

Great  Britain  and  America  will  surrender  their  own  sub- 
jects who,  having  committed  offences  abroad,  succeed  in 
reaching  their  native  land  before  they  are  arrested.  But 
many  countries  decline  to  carry  the  principle  of  the  terri- 
toriality of  crime  to  this  extent,  and  either  try  the  offenders 
themselves  if  the  offence  is  justiciable  under  their  law,  or 


240  RIGHTS,  ETC.,  CONNECTED  WITH  JURISDICTION. 

allow  them  to  escape  unpunished.  There  seems  little  reason 
for  a course  of  action  dictated  either  by  an  exaggerated 
notion  of  a citizen’s  privileges  or  by  a profound  distrust  of 
the  administration  of  justice  in  foreign  lands.  A case  can 
always  be  watched,  and,  in  the  unlikely  event  of  its  being 
conducted  with  manifest  unfairness,  remonstrances  can  be 
made.  If  civilized  states  have  sufficient  confidence  in  one 
another  to  enter  into  Extradition  Treaties  at  all,  they  ought 
to  be  willing  to  surrender  their  own  subjects  when  occasions 


arise. 


CHAPTER  IV. 


RIGHTS  AND  OBLIGATIONS  CONNECTED  WITH  EQUALITY. 

§ 134. 

From  the  time  of  Grotius  to  the  present  day  publicists 
have  declared  that  all  independent  states  are  equal  in  the 
eye  of  International  Law.  The  equality  they  Meaning  and  utu- 
speak  of  is  not  an  equality  of  power  and  influ-  °f  Equality!' 
ence,  but  of  legal  rights.  They  hold  that  the  1^“^” 
smallest  and  weakest  of  independent  political  statement  oflt- 
communities  has  exactly  the  same  position  before  the  law 
of  nations  as  the  strongest  and  most  extensive  empire. 
Doubtless  this  theory  was  for  a long  time  productive  of 
great  good.  It  gave  weak  states  an  admitted  principle  to 
appeal  to  in  the  case  of  aggression  from  stronger  neigh- 
bors ; and  though  it  did  not  often  prevent  high-handed 
wrong,  it  placed  the  brand  of  illegality  upon  transactions  of 
the  order  familiar  to  readers  of  the  fable  of  the  wolf  and  the 
lamb.  And  the  result  was  that  when  helpless  states  were 
wantonly  attacked,  the  aggressor  invented  some  plausible 
excuse.  Either  the  weaklings  had  been  themselves  guilty 
of  a wrong  which  must  be  punished,  or  the  Balance  of 
Power  was  seriously  disturbed  on  account  of  their  nefarious 
conduct,  or  they  were  meditating  outrages  upon  neighbors 
who  were  therefore  reluctantly  compelled  to  attack  them  in 
self-defence.  Thus  a certain  amount  of  lip-service  was  done 
to  the  principles  of  morality  ; and  respect  for  International 
Law  was  kept  up  in  the  midst  of  transactions  which  were  in 
reality  lawless. 


& 


241 


242 


RIGHTS  AND  OBLIGATIONS 


But  a careful  examination  of  recent  international  history 
seems  to  reveal  a series  of  important  facts,  which  can  have 
no  other  meaning  than  that  the  doctrine  of  Equality  is  becom- 
ing obsolete  and  must  be  superseded  by  the  doctrine  that  a 
Primacy  with  regard  to  some  important  matters  is  vested  in 
the  foremost  powers  of  the  civilized  world.  Europe  is  work- 
ing round  again  to  the  old  notion  of  a common  superior,  not 
indeed  a Pope  or  an  Emperor,  but  a Committee,  a body  of 
representatives  of  her  leading  states.  During  the  greater 
part  of  the  present  century  Great  Britain,  France,  Austria, 
Prussia  and  Russia  have  exercised  by  concerted  action  a 
kind  of  superintendence  over  some  departments  of  European 
affairs,  and  in  1867  Italy  was  invited  to  join  them.  These 
six  states  are  called  the  Great  Powers,  and  the  agreement  of 
the  Great  Powers  is  called  the  Concert  of  Europe,  a phrase 
which  seems  to  indicate  that  what  is  done  by  their  concerted 
action  is  done  on  behalf  of  the  whole  of  Europe  and  is  bind- 
ing upon  other  states,  even  though  they  have  not  been  for- 
mally consulted  with  regard  to  it.  On  the  American  conti- 
nent a similar  primacy,  though  hardly  of  so  pronounced  a 
character,  seems  to  be  vested  in  the  United  States.  We  do 
not  assert  that  the  hegemony  of  the  Great  Powers  in  the  Old 
World  and  the  United  States  in  the  New  is  an  undoubted  prin- 
ciple of  public  law.  All  we  contend  for  is  that  events  are 
tending  in  that  direction  and,  unless  the  tendency  is  speedily 
reversed,  the  Grotian  doctrine  of  Equality  will  soon  be  a thing 
of  the  past.  A brief  historical  review  will  be  sufficient  to 
indicate  the  grounds  on  which  this  proposition  is  based. 


185. 


The  establishment  of  the  Kingdom  of  Greece  in  1882  was 
preceded  by  long  and  intricate  negotiations 

The  Primacy  of  1/  0 ^ . 

the  Great  Powers  between  the  Great  Powers.  Ihe  armed  inter- 

in  Europe. 

vention  which  forced  Turkey  to  give  up  the  ter- 
ritory of  the  new  Kingdom  was  the  work  of  England,  France 


CONNECTED  WITH  EQUALITY. 


243 


and  Russia,  who  guaranteed  the  integrity  of  the  Greek 
state;  but  Austria  and  Prussia  were  kept  informed  of  all 
that  was  done,  and,  when  in  1863  fresh  arrangements  became 
necessary  owing  to  the  deposition  of  King  Otho,  the  three 
guaranteeing  states  obtained  in  a more  definite  manner  the 
co-operation  of  the  other  two.  The  annexation  of  the  Ionian 
Islands  to  Greece  was  agreed  upon  by  all  the  Great  Powers; 
and  at  the  time  of  the  cession,  the  neutralization  of  Corfu 
and  Paxo  was  declared  by  the  Courts  of  Great  Britain, 
France  and  Russia  “with  the  assent  of  the  Courts  of  Austria 
and  Prussia.”  1 In  any  emergencies  which  have  since  arisen 
all  the  Great  Powers  have  been  consulted  as  a matter  of 
course,  and  the  Concert  of  Europe  has  undertaken  the  set- 
tlement of  difficulties.  From  1876  to  1881  the  Greek  claims 
for  an  increase  of  territory  were  placed  before  various  Con- 
ferences and  Congresses;  and  Turkey  was  at  last  induced 
by  the  pressure  of  the  Powers  to  cede  a portion  of  what  had 
been  demanded.  And  when  in  1886  Greece  showed  a dis- 
position to  attack  the  Ottoman  Empire  in  order  to  obtain  the 
remainder,  the  Great  Powers  again  interfered,  and  after  some 
negotiation  all  of  them,  with  the  exception  of  France,  joined 
in  establishing  a Pacific  Blockade 2 of  the  Greek  coast,  till 
the  little  Kingdom  yielded  and  disbanded  its  forces.3 

The  Kingdom  of  Belgium  also  owes  its  origin  to  the  Great 
Powers,  who  were  all  formally  concerned  in  the  question 
from  the  first.  They  were  called  in  originally  by  the  King  of 
Holland  to  mediate  between  him  and  his  Belgian  subjects, 
who  had  revolted  in  1830.  But  they  soon  let  it  be  under- 
stood that  they  intended  to  deal  with  the  matter  as  seemed 
best  to  them,  and  in  spite  of  his  remonstrances  and  armed 
opposition  they  erected  Belgium  into  a separate  Kingdom  and 
guaranteed  the  perpetual  neutrality  of  its  territory.  In  the 
course  of  the  negotiations  serious  disagreements  arose  among 

1 Holland,  The  European  Concert  in  the  Eastern  Question , p.  51. 

2 See  § 159.  3 In  1897  the  Great  Powers  again  intervened  to  prevent  the 

annexation  of  Crete  to  Greece,  and  to  dictate  the  terms  of  peace  between 
Greece  and  Turkey. 


244 


RIGHTS  AND  OBLIGATIONS 


the  powers,  and  it  was  not  till  1839  that  the  question  was 
settled.  While  it  lasted  an  English  fleet  blockaded  the 
Dutch  ports  and  a French  army  besieged  and  took  Antwerp.1 
When  the  Concert  of  Europe  was  established  it  was  by  no 
means  disposed  to  allow  its  decrees  to  be  set  at  naught. 

The  erection  of  Egypt  into  a semi-sovereign  state  under 
the  suzerainty  of  the  Porte  was,  as  we  have  seen,2  the  work 
of  the  Great  Powers.  France  was  unable  to  concur  in  the 
arrangements  embodied  in  the  Quadruple  Treaty  of  1840  ; 
but  her  voice  has  been  none  the  less  potent  on  that  account 
in  subsequent  negotiations.  She  has  played  a leading  part 
in  the  regulation  of  Egyptian  affairs  and  is  most  anxious 
to  terminate  the  present  British  occupation  of  the  country. 
It  is  quite  certain  that  this  is  but  a temporary  feature,  though 
its  duration  is  exceedingly  uncertain.  When  it  comes  to  an 
end,  the  arrangements  which  are  to  succeed  it  will  be  sub- 
mitted to  the  European  Concert.  The  final  settlement  must, 
in  the  words  of  Mr.  Gladstone,  “ be  arrived  at  with  the  inter- 
vention and  under  the  authority  of  Europe,  and  never  could 
be  adequately  founded  upon  the  simple  conclusion  of  any 
single  power  of  Europe.”3 

One  of  the  main  objects  of  the  Crimean  War,  and  the 
only  one  which  has  been  permanently  attained,  was  to  take 
the  power  of  settling  the  destinies  of  the  subject  Christian 
populations  of  Turkey  out  of  the  hands  of  Russia  alone, 
and  vest  it  in  the  Concert  of  Europe.  Though  Austria  and 
Prussia  had  not  been  belligerents  they  were  admitted  to  the 
Conferences  which  drew  up  the  Treaty  of  Paris  in  1856. 
This  was  done  because  they  were  Great  Powers,  and  it  was 
felt  that  no  settlement  of  the  Eastern  Question  could  be 
satisfactory  if  they  were  excluded  from  it.  Acting  on  the 
same  principle  Great  Britain  insisted  that  Russia  should  not 

1 Wheaton,  History  of  the  Law  of  Nations,  p.  550. 

2 See  §§  49,  50. 

3 Speech  in  the  House  of  Commons,  Aug.  10,  1882  ; see  Hansard , 3d  Series , 
Vol.  CCLXXIII.,  1391. 


CONNECTED  WITH  EQUALITY. 


245 


be  allowed  tb  make  a separate  peace  with  Turkey  in  1878, 
and  after  a sharp  diplomatic  struggle  her  view  prevailed. 
The  Treaty  of  San  Stefano  was  submitted  to-  a European 
Congress,  in  which  England,  France,  Germany,  Austria  and 
Italy  took  part  along  with  Russia  and  Turkey,  the  two  prin- 
cipal belligerents.  The  Congress  discussed  exhaustively  the 
questions  raised  by  the  war,  and  substituted  the  Treaty  of 
Berlin  for  the  Treaty  of  San  Stefano,  which  was  regarded 
as  merely  a preliminary  document  to  be  modified  by  general 
agreement.1 

In  addition  to  superintending  and  controlling  the  great 
territorial  and  political  changes  we  have  described,  we  find 
the  Great  Powers  receiving  Turkey  into  the  family  of  nations 
and  providing  for  the  international  works  at  the  mouth  of 
the  Danube  in  1856,  conferring  the  rank  of  a Great  Power 
on  Italy  in  1867,  neutralizing  Luxemburg  in  the  same  year, 
granting  conditional  Recognition  of  Independence  to  Monte- 
negro, Roumania  and  Servia  in  1878,  and  leading  smaller 
maritime  states  in  the  negotiations  which  brought  about  the 
neutralization  of  the  Suez  Canal  in  1888.  These  cases  seem 
to  show  not  merely  a superiority  in  influence  but  a superi- 
ority before  the  law.  The  Great  Powers  make  new  arrange- 
ments, and  other  states  accept  them  and  act  upon  them  for 
the  future.  Over  the  group  of  problems  which  we  call 
by  the  generic  name  of  the  Eastern  Question  the  authority  of 
the  Powers  is  absolute  and  complete.  There  is  scarcely  a 
detail  which  they  do  not  settle  by  agreement  among  them- 
selves. There  are  other  questions,  such  as  the  security  of 
the  neutralized  states  of  Europe,  which  they  deem  matters 
of  common  concern ; while  over  the  great  majority  of  sub- 
jects which  may  arise  between  nations  they  make  no  attempt 
to  exercise  control,  but  leave  the  parties  to  settle  their  disa- 
greements among  themselves  and  possibly  to  go  to  war  over 
them.  The  authority  of  the  European  Concert  is  limited, 
its  jurisdiction  rudimentary,  and  its  procedure  indefinite 
1 Holland,  European  Concert  in  the  Eastern  Question,  pp.  220-241. 


246 


EIGHTS  AND  OBLIGATIONS 


and  uncertain.  But  it  exists  and  is  one  of  the  great  features 
in  the  international  politics  of  the  civilized  world.  Some- 
times it  enforces  its  authority  by  war  or  the  threat  of  war ; 
sometimes  one  or  two  of  its  members  take  upon  themselves 
to  compel  submission  to  its  dictates  ; sometimes  it  merely 
gives  advice.  It  is  not  contended  that  the  Primacy  of  the 
Great  Powers  confers  on  them  in  their  individual  capacity 
any  greater  rights  than  those  possessed  by  other  members  of 
the  family  of  nations.  In  matters  connected  with  property, 
jurisdiction  and  diplomacy,  they  are  on  the  same  footing 
as  their  smaller  neighbors,  nor  do  they  claim  as  belligerents 
or  neutrals  privileges  which  would  not  be  accorded  to  the 
weakest  of  independent  states.  It  is  only  when  they  act 
collectively  that  they  possess  a superintending  authority  not 
granted  to  any  temporary  alliance.  Europe  allows  them  in 
some  matters  to  speak  on  its  behalf.  The  arrangements  they 
make  are  accepted  and  acted  upon  by  other  states,  not  only 
when  they  refer  to  the  redistribution  of  territory,  which 
might  be  regarded  as  an  accomplished  fact  to  be  taken  note 
of  whether  effected  by  fair  means  or  foul,  but  also  when  they 
remodel  political  arrangements  in  such  a way  as  to  impose 
continuous  obligations  upon  other  powers  who  were  not 
admitted  to  their  councils.  The  neutralization  of  Belgium, 
for  instance,  is  regarded  as  being  under  the  protection  of 
the  public  law  of  Europe,  and  every  European  state  is  held 
bound  not  to  attack  her  as  long  as  she  fulfils  the  funda- 
mental conditions  of  her  existence.  But  the  Belgian  King- 
dom was  erected  and  neutralized  by  the  action  of  the  Great 
Powers,  who  gave  it  the  peculiar  status  which  it  possesses. 
They,  therefore,  imposed  upon  the  rest  of  Europe  fresh  obli- 
gations ; and  the  fact  that  they  were  allowed  to  do  so,  not 
only  in  this  case  but  in  many  others,  shows  that  their  posi- 
tion of  Primacy  is  recognized  by  tacit  consent.  The  future 
alone  can  decide  whether  their  present  limited  and  ill-defined 
authority  will  become  formal  and  general.  Much  will  de- 
pend upon  the  way  in  which  it  is  exercised.  The  Concert 


CONNECTED  WITH  EQUALITY. 


247 


of  Europe  may  develop  into  a great  International  Court  of 
Appeal,  or  it  may  go  the  way  of  the  numerous  leagues  and 
alliances  which  from  time  to  time  exercised  a brief  control 
and  then  dissolved  to  be  replaced  by  new  combinations.1 

§ 136. 

The  position  of  the  United  States  on  the  American  conti- 
nent is  in  some  respects  like  and  in  others  exceedingly  unlike 
that  which  is  accorded  in  Europe  to  the  six 

The  Primacy  of 

Great  PoAvers.  the  great  Republic  of  the  the  united  states 

T -rTr  . .in  America. 

JNIew  World  stands  out  as  a giant  among  pig- 
mies. There  is  no  other  state  in  the  same  hemisphere  which 
can  be  compared  to  her  in  strength  and  influence.  If  it  be 
true  that  there  is  a Primacy  in  America  comparable  in  any 
way  with  that  which  exists  in  Europe,  it  must  be  wielded 
by  her  and  by  her  alone.  There  is  no  room  for  that  ma- 
chinery of  Conferences,  Congresses,  and  diplomatic  commu- 
nications which  plays  so  large  a part  in  the  proceedings 
of  the  Great  Powers.  The  supremacy  of  a Committee  of 
States  and  the  supremacy  of  a single  state  cannot  be  exer- 
cised in  the  same  manner.  What  in  Europe  is  done  after 
long  and  tedious  negotiations,  and  much  discussion  between 
representatives  of  no  less  than  six  countries,  can  be  done  in 
America  by  the  decision  of  one  Cabinet  discussing  in  secret 
at  Washington.  But  though  the  method  of  control  must  be 
different,  the  kind  of  control  may  he  the  same.  We  cannot 
assert  that  any  President  has  gone  to  the  length  of  assuming 
the  powers  exercised  by  the  European  Concert  in  dictating 
territorial  arrangements  or  calling  new  states  into  being. 
An  American  Belgium  does  not  exist ; and  no  American 
Greece  has  received  an  increase  of  territory  from  some 
decaying  neighbor  on  the  demand  of  the  United  States. 
But  though  supremacy  has  never  been  exercised  in  this 

1 Lawrence,  Essays  on  Some  Disputed  Questions  in  Modern  International 
Law , Y. 


248 


RIGHTS  AND  OBLIGATIONS 


extreme  form,  there  can  be  no  doubt  that  very  large  powers 
of  supervision  have  been  claimed  for  certain  definite  pur- 
poses which  tend  rather  to  increase  in  number  than  to 
decrease.  The  doctrine  of  Washington’s  Farewell  Address, 
eloquently  paraphrased  by  Jefferson  in  his  Inaugural  in  the 
famous  words,  “peace,  commerce,  and  honest  friendship 
with  all  nations  — entangling  alliances  with  none,”  grew  in 
the  hands  of  President  Monroe,  and  under  the  circumstances 
connected  with  the  project  of  the  Holy  Alliance  to  restore 
the  dominion  of  Spain  over  her  revolted  American  colonies, 
into  an  assertion  that  the  United  States  would  consider  any 
attempt  on  the  part  of  European  powers  “to  extend  their 
system  to  any  portion  of  this  hemisphere  as  dangerous  to 
our  peace  and  safety.”  With  this  was  joined  in  the  same 
message  a declaration  that  “the  American  continents  by  the 
free  and  independent  condition  which  they  have  assumed 
and  maintain,  are  henceforth  not  to  be  considered  as  sub- 
jects for  future  colonization  by  any  European  powers.” 
These  two  principles  taken  together  form  the  Monroe  Doc- 
trine, which  has  been  repeated  again  and  again  in  docu- 
ments emanating  from  the  executive  department.  It  has 
been  the  subject  of  a vast  amount  of  comment,  and  the 
glosses  upon  it  sometimes  go  far  beyond  the  original  text. 
We  will  not  attempt  to  collect,  still  less  to  reconcile,  the 
various  statements  that  have  been  put  forth  from  time  to 
time.  What  we  have  to  do  is  to  make  clear  the  position 
which  the  United  States  does  in  fact  occupy  with  regard  to 
the  other  powers  of  the  New  World. 

Soon  after  the  assertion  of  the  Monroe  Doctrine  in  the 
Presidential  Message  of  Dec.  2,  1828,  the  revolted  colonies 
of  Spain,  then  newly  recognized  as  independent  states,  took 
the  ground  that  the  utterances  of  President  Monroe  con- 
stituted a pledge  of  support  from  the  United  States  to 
the  other  American  Republics  in  excluding  European  in- 
terference from  the  political  complications  of  the  Ameri- 
can continent  and  preventing  any  European  state  from 


CONNECTED  WITH  EQUALITY. 


249 


acquiring  by  colonization  further  dominion  in  the  New 
World.  They  therefore  proposed  a Congress  at  Panama 
with  a view  to  the  formation  of  an  alliance  for  mutual  sup- 
port. The  scheme,  however,  ended  in  nothing,  owing  to 
the  opposition  of  the  Congress  and  people  of  the  United 
States  to  any  agreement  which  would  limit  their  freedom  of 
action  on  each  case  as  it  arose.  In  April,  1826,  the  House 
of  Representatives  resolved  “that  the  Government  of  the 
United  States  ought  not  to  be  represented  at  the  Congress 
of  Panama,  except  in  a diplomatic  character,  nor  ought  they 
to  form  any  alliance,  offensive  or  defensive,  or  negotiate 
respecting  such  an  alliance  with  all  or  any  of  the  Spanish 
American  Republics  ; nor  ought  they  to  become  parties 
with  them,  or  either  of  them,  to  any  joint  declaration  for 
the  purpose  of  preventing  the  interference  of  any  of  the 
European  powers  with  their  independence  or  form  of  gov- 
ernment, or  to  any  compact  for  the  purpose  of  preventing 
colonization  upon  the  continent  of  America ; but  that  the 
people  of  the  United  States  should  be  left  free  to  act,  in 
any  crisis,  in  such  a manner  as  their  feelings  of  friendship 
towards  these  republics  and  as  their  own  honor  and  policy 
may  at  the  time  dictate.”  This  attitude  of  non-committal 
has  been  maintained  ever  since.  The  United  States  is 
bound  by  no  pledge  to  any  other  American  state  to  assist 
it  by  force  of  arms  in  resisting  European  intervention.  But 
at  the  same  time  it  has  acted  again  and  again  upon  the 
principles  laid  down  by  Jefferson  when  he  was  consulted  by 
President  Monroe  in  the  autumn  of  1828.  He  then  wrote, 
“ Our  first  maxim  should  be,  never  to  entangle  ourselves  in 
the  broils  of  Europe  ; our  second,  never  to  suffer  Europe 
to  intermeddle  with  Cisatlantic  affairs.”  More  than  once 
Great  Britain  and  France  have  been  informed  that  the 
United  States  would  not  see  with  indifference  the  transfer 
of  Cuba  from  Spain  to  any  other  European  power.  The 
Clayton-Bulwer  Treaty  of  1850  bound  England  not  to  ex- 
ercise dominion  over  “ airy  part  of  Central  America,”  and, 


250 


EIGHTS  AND  OBLIGATIONS 


in  the  course  of  the  long  discussions  which  followed  as  to 
the  exact  meaning  and  extent  of  the  obligation  thereby 
imposed,  persistent  diplomatic  pressure  at  last  prevailed 
upon  the  British  Government  to  give  up  the  Protectorate 
it  had  acquired  long  before  the  treaty  was  signed  over  the 
Indians  of  the  Mosquito  Coast.  The  French  intervention 
in  Mexico  coincided  in  point  of  time  with  the  great  Ameri- 
can Civil  War;  but  the  Federal  Government,  preoccupied 
as  it  was,  did  not  neglect  to  protest  whenever  opportunity 
offered,  not  indeed  against  the  attack  on  Mexico  by  France, 
but  against  the  attempt  on  the  part  of  the  French  army  of 
occupation  to  destroy  the  Republican  institutions  of  the 
country  and  set  up  an  Emperor,  contrary,  it  was  main- 
tained, to  the  wishes  of  the  great  majority  of  the  Mexican 
people.  The  downfall'  of  the  Confederacy  enabled  the 
administration  at  Washington  to  act  with  greater  vigor 
than  before  ; and  its  energetic  remonstrances,  coupled  with 
the  knowledge  that  if  they  were  disregarded  force  would 
in  all  probability  be  used,  caused  France  to  withdraw  her 
troops  and  led  to  the  speedy  downfall  of  the  unfortunate 
Emperor  Maximilian. 

In  so  far  as  the  shutting  out  of  the  European  state-system 
from  American  soil  is  concerned,  we  may  assert  that  the 
United  States  acts,  and  will  continue  to  act,  as  warder  of 
the  continent.  Whether  it  will  endeavor  to  exercise  any 
superintendence  over  international  affairs  of  a purely  Ameri- 
can character  is  perhaps  a little  more  doubtful.  Of  recent 
years  there  has  been  a tendency  in  that  direction ; but  it 
has  been  met  by  another  tendency,  perhaps  equally  strong, 
not  to  sanction  a policy  which  would  entangle  the  country 
in  complications  outside  its  own  territory.  Thus  the  threat 
of  1881  to  restrain  Chili  in  her  dealings  with  conquered 
Peru  was  toned  down  in  1882  to  a proffer  of  kindly  offices  in 
reconciling  the  two  Republics  ; and  the  President  withdrew 
from  the  Senate  the  Treaty  of  1884,  by  which  the  United 
States  agreed  to  find  the  capital  for  the  construction  of  an 


Connected  with  equality. 


251 


oceanic  canal  from  the  Atlantic  to  the  Pacific  through  the 
territory  of  Nicaragua,  and  covenanted  to  receive  in  return 
two-thirds  of  the  revenue  arising  from  the  traffic  and  to  hold 
in  joint  sovereignty  with  Nicaragua  the  strip  of  land  through 
which  the  canal  was  to  pass.  It  is  necessary  to  speak  with 
caution  in  describing  the  present  position  of  the  United  States 
with  respect  to  the  other  powers  of  the  American  continent ; 
but  the  facts  seem  hardly  consistent  with  the  old  doctrine 
of  the  absolute  Equality  of  Independent  States.  The  words 
of  Mr.  Fish  in  his  Report  of  July,  1870,  to  President  Grant 
more  accurately  define  it.  The  Secretary  of  State  says,  “ The 
United  States,  by  the  priority  of  their  independence,  by  the 
stability  of  their  institutions,  by  the  regard  of  their  people 
for  the  forms  of  law,  by  their  resources  as  a government,  by 
their  naval  power,  by  their  commercial  enterprise,  by  the 
attractions  which  they  offer  to  European  immigration,  by 
the  prodigious  internal  development  of  their  resources  and 
wealth,  and  by  the  intellectual  life  of  their  population, 
occupy  of  necessity  a prominent  position  on  this  continent 
which  they  neither  can  nor  should  abdicate,  which  entitles 
them  to  a leading  voice,  and  which  imposes  on  them  duties 
of  right  and  of  honor  regarding  American  questions,  whether 
those  questions  affect  emancipated  colonies,  or  colonies  still 
subject  to  European  dominion.  ” This  statement  is  correct 
both  in  fact  and  in  theory,  if  we  except  from  the  last  clause 
of  it  the  internal  affairs  of  the  few  remaining  European 
colonies  in  the  New  World.  It  will  hardly  be  contended 
that  the  Government  of  Washington  has  any  right,  moral 
or  legal,  to  qualify  the  independence  of  the  countries  to 
which  they  belong  by  meddling  with  their  domestic  affairs.1 

1 For  the  Monroe  Doctrine  and  its  various  phases  see  Wharton,  Digest  of 
the  International  Law  of  the  United  States,  §§  57  et  seq. ; Wheaton,  Inter- 
national Law  (Dana’s  ed.),  note  36 ; and  American  History  Leaflets , No.  4. 
The  intervention  of  President  Cleveland  in  1895  and  1896  in  the  dispute  be- 
tween Great  Britain  and  Venezuela  as  to  the  boundary  between  the  territory 
of  the  latter  and  British  Guiana,  has  given  to  the  Monroe  Doctrine  a widely 
extended  significance. 


252 


RIGHTS  AND  OBLIGATIONS 


§137. 

The  principle  of  Equality,  with  the  limitation  suggested 
in  the  previous  sections,  pervades  and  influences  the  whole 
Matters  of  cere-  of  International  Law.  But  the  definite  rules 

mony  and  eti- 

quette  connected  that  can  be  traced  to  it  are  few  m number  and 

with  the  doctrine 

of  Equality.  not  of  first-rate  importance.  They  relate  to 

matters  of  ceremony  and  etiquette,  which  are  the  outward 
signs  of  equality  or  the  reverse.  The  principle  appears  to 
demand  that  all  independent  states  should  be  treated  alike; 
but  though  this  is  possible  in  some  matters,  such  as  firing 
salutes  or  supplying  guards  of  honor,  it  is  impossible  in 
others,  such  as  the  order  of  sitting  at  a state  ceremonial  or 
the  order  of  signing  an  international  document.  To  meet 
the  difficulties  occasioned  by  these  instances  and  others  of  a 
similar  kind,  rules  have  been  devised  which  reconcile  the 
theoretical  equality  of  states  with  the  precedence  which  it 
is  necessary  should  exist  among  sovereigns  and  their  repre- 
sentatives. In  the  seventeenth  and  eighteenth  centuries  an 
exaggerated  importance  was  attached  to  questions  of  eti- 
quette. Readers  of  Macaulay’s  History  will  remember  the 
graphic  description  given  in  Chapter  XXII.  of  the  squabbles 
of  the  Plenipotentiaries  assembled  at  the  Conference  of 
Ryswick;  and  those  who  are  desirous  of  acquiring  further 
information  on  the  subject  will  find  what  they  want  in  Ber- 
nard’s Lectures  on  Diplomacy . An  amusing  instance  of  the 
trivialities  out  of  which  disputes  could  grow  is  afforded  by 
Sir  John  Finett’s  account  of  the  marriage  festivities  of  the 
Princess  Elizabeth,  daughter  of  James  I.  of  England,  and 
Frederick,  the  Elector  Palatine.  The  worthy  knight  was 
Master  of  the  Ceremonies  at  the  English  Court,  and  evidently 
took  himself  and  his  official  duties  very  seriously.  We 
subjoin  a short  quotation  from  his  Observations  touching  For- 
ren  Ambassadors , preserving  the  original  spelling.  He  writes, 
“At  this  time  the  French  and  Venetian  Ambassadors  invited 
to  the  marriage  were  not  free  from  Punctillios.  That  made 


CONNECTED  WITH  EQUALITY. 


253 


an  effort  to  precede  the  Prince.  This  stood  upon  it  that 
they  were  not  to  sit  at  the  table  without  Chaires  (though 
the  Prince  . . . had  but  a stoole,  the  Count  Palatine  and 
the  Princess,  onely  for  the  honour  of  the  day  having  Chayres) 
and  insisting  upon  a formality  that  the  Carver  was  not  to 
stand  above  him;  but  neither  of  them  prevailed  in  their 
reasonlesse  pretences.”  All  ceremonial  disputes,  however, 
were  not  so  fantastic  or  so  easily  settled  as  this  one.  Occa- 
sionally they  led  to  bloodshed,  and  were  the  pretexts  if  not 
the  actual  causes  of  war,  as  when  in  1672  Charles  II.  of  Eng- 
land commenced  hostilities  against  the  United  Provinces, 
ostensibly  because  one  of  his  royal  yachts  had  not  been 
properly  saluted  when  passing  through  the  Dutch  fleet  near 
the  coast  of  Zealand. 


§138. 

But  it  must  not  be  supposed  that  etiquette  is  altogether 
unimportant,  or  that  states  in  modern  times  have  ceased  to 
care  for  it,  because  they  no  longer  go  to  war  Rule3  of  prece_ 
about  such  matters  as  titles  and  salutes.  It  is  andThef/reprt 
necessary  for  the  dignified  and  orderly  conduct  Bentatlves- 
of  international  affairs  that  ceremonies  should  exist  and  that 
rules  of  precedence  should  he  laid  down  and  accepted. 
Courtesy  demands  that  states  should  abide  by  these  rules  in 
their  mutual  intercourse.  The  power  which  neglects  them 
degrades  itself  in  the  Society  of  Nations  to  the  level  of  a 
rude  boor  in  the  Society  of  Individuals.  Moreover  some  of 
them  are  symbolic.  The  honor  paid  to  the  flag,  for  in- 
stance, when  it  is  saluted  by  a foreign  man-of-war  entering 
a friendly  port  is  something  more  than  a piece  of  etiquette. 
To  omit  the  salute  would  imply  that  the  state  visited  was 
inferior  to  other  states  which  still  received  the  customary 
honor ; and  therefore  failure  to  fire  the  usual  number  of  guns 
would  be  justly  resented.  But  it  is  hardly  likely  that  such 
a case  will  arise  in  future,  and,  if  it  does,  we  may  safely 
say  that  the  peace  of  nations  will  not  be  disturbed  by  it. 


254 


RIGHTS  AND  OBLIGATIONS 


Many  of  the  old  difficulties  have  been  settled  by  express  or 
tacit  agreement,  others  have  disappeared  with  lapse  of  time 
and  change  of  circumstances,  and  with  regard  to  those  which 
still  remain  a disposition  to  compromise  and  to  avoid  elevat- 
ing trifles  into  matters  of  supreme  importance  happily  pre- 
vails. We  will  give  a brief  sketch  of  existing  arrangements, 
dealing  first  with 

Rules  of  precedence  for  states  and  their  representatives. 

The  relative  rank  of  states  and  sovereigns  has  never  been 
determined  by  general  agreement.  A fixed  order  of  pre- 
cedence is  quite  compatible  with  equality  before  the  law; 
but,  inasmuch  as  the  pride  of  rulers  is  involved  in  questions 
concerning  it,  no  such  order  has  ever  been  accepted.  The 
attempt  which  was  made  at  the  Congress  of  Vienna  of  1815 
to  classify  the  states  of  Europe  for  ceremonial  purposes  failed 
entirely.  Custom  has,  however,  given  birth  to  a few  rules. 
It  used  to  be  held  that  states  which  enjoyed  royal  honors 
took  precedence  of  states  which  did  not.  But  as  the  enjoy- 
ment of  royal  honors  means  little  more  than  the  right  of 
sending  diplomatic  ministers  of  the  first  class,  and  that  right 
is  now  accorded  to  all  independent  states,  the  distinction 
based  upon  it  has  become  obsolete  and  unmeaning.  The 
rules  in  existence  now  are  as  follows:  (a)  Fully  sovereign 
states  take  precedence  of  states  under  the  power  of  a Suze- 
rain. (h)  Precedence  is  accorded  to  the  Pope  by  Roman 
Catholic  states,  but  not  by  Protestant  states  or  by  states 
which  hold  the  faith  of  the  Greek  Church,  (c)  Sovereigns 
who  are  crowned  heads  take  precedence  of  those  who  are 
not,  such  as  Grand  Dukes  or  Electors;  but  powerful  Repub- 
lics, such  as  the  United  States  and  France,  rank  along  with 
the  great  monarchical  states.  The  old  view  that  a Republic 
was  inferior  to  an  Empire  or  a Kingdom  has  now  but  little 
influence;  but  two  centuries  ago  it  was  enormously  strong. 
The  Dutch  had  great  difficulty  in  making  good  their  posi- 
tion at  the  Congress  of  Munster  and  on  other  occasions;  and 


CONNECTED  WITH  EQUALITY. 


255 


it  required  all  the  firmness  of  Cromwell  to  secure  for  the 
Commonwealth  the  ceremonial  rank  accorded  to  the  old 
English  Monarchy. 

When  a great  treaty  or  other  international  document  has 
to  be  signed  by  several  powers,  various  devices  are  resorted 
to  for  the  purpose  of  preventing  disputes  as  to  precedence. 
The  most  famous  of  them  is  the  Alternate  a usage  whereby 
the  signatures  alternate  in  a regular  order,  or  in  one  deter- 
mined by  lot,  the  name  of  the  representative  of  each  state 
standing  first  in  the  copy  kept  by  that  state.  Another  plan 
is  to  sign  in  the  alphabetical  order  of  the  names  of  the  powers 
in  the  French  language. 

The  relative  rank  of  the  regular  diplomatic  agents  of  states 
is  determined  by  fixed  rules  which  have  received  general 
assent  and  are  acted  upon  by  all  civilized  nations.  We  will 
discuss  them  when  we  deal  with  Diplomacy  and  Negotiation.1 

§ 139. 

We  will  now  proceed  to  deal  with 

Titles  and  their  recognition  by  other  states. 

Every  sovereign  may  take  whatever  title  is  conferred  upon 
him  by  the  law  of  his  own  country ; and  his  subjects  are, 
of  course,  bound  to  use  it  in  all  official  docu- 

. . Titles  and  their 

ments.  But  other  states  are  under  no  inter-  recognition  by 

. 'Other  states. 

national  obligation  to  use  a new  title  taken  by 
the  head  of  one  of  their  number.  They  may  decline  to  do 
so,  and  continue  in  their  official  intercourse  the  use  of  the 
old  title,  or  they  may  use  the  new  one  only  on  conditions. 
The  latter  course  is  sometimes  adopted  if  the  new  title  is 
accounted  higher  than  the  old.  It  is  then  often  stipulated 
that  the  use  of  it  should  not  be  held  to  confer  a higher 
degree  of  rank  and  precedence  upon  the  sovereign  who  has 
assumed  it.  These  arrangements  are  well  illustrated  by  the 

i See  § 143. 


256 


RIGHTS  AND  OBLIGATIONS 


history  of  the  reception  and  acknowledgment  abroad  of  the 
imperial  title  of  the  Czar  of  Russia.  Peter  the  Great  pro- 
claimed himself  Emperor  of  all  the  Russias  in  1701.  Eng- 
land was  the  only  power  which  recognized  the  new  title  at 
once.  Prussia  did  not  acknowledge  it  till  1723,  the  German 
Empire  till  1746,  Spain  till  1759,  and  Poland  till  1764. 1 
When  France  recognized  it  in  1745  she  stipulated  that  it 
should  make  no  change  in  the  ceremonies  formerly  observed 
between  the  two  courts. 


§ wo. 

The  last  matters  we  have  to  consider  in  connection  with 
Equality  and  its  outward  signs  are 

Maritime  ceremonials. 

These  are  salutes  between  ships  or  between  ships  and  forts. 
They  are  carried  on  by  firing  artillery  or  striking  sails. 
Maritime  cere-  The  law  of  each  state  prescribes  their  details 
monial3-  as  between  its  own  vessels.  As  between  ves- 

sels of  different  states,  or  between  vessels  of  one  state  and 
forts  and  land  batteries  of  another,  matters  are  regulated 
by  express  stipulations  or  by  international  custom.  In  the 
days  when  states  claimed  dominion  over  portions  of  the  high 
seas  and  saluting  first  was  looked  upon  as  an  acknowledg- 
ment of  superiority,  great  disputes  arose  about  salutes. 
British  cruisers  were  instructed  to  capture  vessels  which 
refused  to  give  proper  honor  to  their  flag  in  the  seas  claimed 
as  part  of  the  territorial  possessions  of  the  Crown.2  Philip 
II.  of  Spain  forbade  his  vessels  to  salute  first  when  they 
passed  the  cities  and  forts  of  other  sovereigns.  France  and 
Russia,  hopeless  of  overcoming  difficulties,  agreed  by  treaty 
in  1787  that  in  future  there  should  be  no  salutes  between 
their  vessels  either  in  port  or  on  the  high  seas,  and-  a similar 
convention  was  negotiated  in  1829  between  Russia  and  Den- 


1 Halleck,  International  Law  (Baker’s  ed.),  I.,  100. 

2 Walker,  Science  of  International  Law , pp.  167-171. 


CONNECTED  WITH  EQUALITY. 


257 


mark.1  In  modern  times  saluting  is  regarded  merely  as  an 
act  of  courtesy ; and  treaties  and  custom  have  given  birth 
to  a number  of  rules  which  meet  with  general  acceptance. 
The  chief  of  them  are  as  follows  : (a)  A ship  of  war  entering 
a foreign  port  or  passing  a port  salutes  first,  unless  the  sov- 
ereign or  his  ambassador  is  on  board,  in  which  case  the  port 
or  fort  salutes  first.  In  any  case  the  salute,  which  is  held 
to  be  an  honor  paid  to  the  national  flag,  is  returned  gun  for 
gun,  by  a fort  if  there  is  one  in  the  place,  if  not  by  a ship 
of  war.  (6)  When  public  vessels  of  different  nationalities 
meet,  the  ship  or  squadron  commanded  by  the  officer  inferior 
in  rank  salutes  first,  and  the  salute  is  returned  gun  for  gun. 

(c)  No  international  salutes  are  to  exceed  twenty-one  guns. 

( d ) Merchant  vessels  salute  ships  of  war  by  lowering  the 
topsails,  if  they  have  no  guns  on  board.  Sometimes  the 
flag  is  lowered,  but  this  is  regarded  by  most  states  as  derog- 
atory to  their  dignity. 

1 D’  Hauterive  and  De  Cussy,  Recueil  des  Traites,  Ft.  I.,  Yol.  III.,  p.  252, 
and  Pt.  II.,  Yol.  II.,  p.  70. 
s 


CHAPTER  V. 


RIGHTS  AND  OBLIGATIONS  CONNECTED  WITH  DIPLOMACY. 

§141. 

The  affairs  of  nations  could  not  be  conducted  without 
mutual  intercourse.  Every  state,  however  barbarous,  recog- 
nipiomatic  inter-  nizes  this,  and  even  savage  tribes  respect  the 
Grow th1*? rest- y persons  of  heralds  and  envoys.  But  among 
dent  embassies.  ^he  family  0f  civilized  nations  who  are  subjects 
of  International  Law  intercourse  is  carried  on  to  a great  and 
steadily  increasing  extent ; and  with  its  growth  has  grown 
a system  of  regulating  it  by  special  formalities,  employing 
special  agents  to  carry  it  on  and  granting  them  special 
immunities. 

In  the  Middle  Ages  when  the  intercourse  between  peoples 
was  comparatively  meagre,  negotiations  were  only  occasional 
incidents  in  the  life  of  a state.  They  were  carried  on  by 
envoys,  sent  abroad  to  do  the  special  business  on  hand  and 
expected  to  return  as  soon  as  it  was  finished.  The  service 
was  often  one  of  difficulty  and  danger,  for  though  the  per- 
sons of  ambassadors  were  held  sacred  in  the  country  to 
which  they  were  sent,  they  received  little  protection  in  the 
states  they  passed  through  on  the  way.  There  were  plenty 
of  robber  bands  for  them  to  guard  against  and  plenty  of 
physical  obstacles  for  them  to  overcome.1  The  revival  of 
commerce  and  letters  at  the  time  of  the  Renascence,  and  the 
immense  impetus  given  to  human  activity  by  the  discovery 
1 Bernard,  Lectures  on  Diplomacy , pp.  121,  122. 


RIGHTS,  ETC.,  CONNECTED  WITH  DIPLOMACY.  259 

of  the  New  World,  made  intercourse  between  states  more 
common  and  more  necessary  than  before.  But  the  introduc- 
tion of  the  practice  of  sending  permanent  ambassadors  to 
reside  at  foreign  courts  is  due  more  to  statecraft  than  to 
utility.  Louis  XI.  of  France,  who  reigned  from  1461 
to  1483,  is  said  to  have  been  the  first  sovereign  to  adopt  it, 
his  design  being  to  have  a sort  of  chartered  spy  at  the  Court 
of  each  of  his  powerful  neighbors.  After  a time  the  con- 
venience of  the  practice  secured  its  general  adoption,  and 
by  the  middle  of  the  seventeenth  century  it  had  become 
recognized  as  the  regular  method  of  carrying  on  diplomatic 
intercourse.  But  it  had  to  win  its  way  against  a mass  of 
jealousy  and  suspicion,  largely  caused  by  the  unscrupulous 
character  of  the  early  diplomatists.  “If  they  lie  to  you, 
lie  still  more  to  them,”  said  Louis  XI.  to  his  ambassadors.1 
‘ ‘ An  ambassador,  ’ ’ said  W otton  in  a punning  epigram,  ‘ ‘ is 
a person  who  is  sent  to  lie  abroad  for  the  benefit  of  his 
country.”  Henry  VII.  of  England  is  praised  by  Coke  as 
“a  wise  and  politique  King”  because  he  would  not  suffer 
ambassadors  from  other  states  to  remain  at  his  Court  after 
their  immediate  business  was  finished ; 2 and  as  late  as  1660 
threats  were  uttered  in  the  Polish  Diet  that  the  French 
Ambassadors  should  be  treated  as  spies  if  they  would  not 
return  home.3  But  the  new  system  became  a necessity  as 
the  complexity  of  international  affairs  increased  in  the 
seventeenth  century ; and  in  spite  of  the  unfavorable  opin- 
ion of  Grotius,4  who  says  that  resident  embassies  may  be 
excluded  by  states  and  speaks  of  them  as  ‘ ‘ now  common  but 
not  necessary,”  it  grew  and  prospered,  and  a great  variety 
of  observances  grew  up  with  it  and  were  gradually  embodied 
in  International  Law. 

1 Flassan,  Diplomatic  Franqaise,  I.,  247. 

2 Fourth  Institute , Ch.  XXVI. 

8 Ward,  History  of  the  Law  of  Nations , II.,  484. 

* De  Juri  Belli  ac  Pads,  II.,  XVIII.,  iii. 


260 


RIGHTS  AND  OBLIGATIONS 


§ 142. 

At  first  diplomatic  ministers  were  of  one  kind,  who  were 
usually  called  Ambassadors  and  were  supposed  to  represent 
Development  of  fhe  Person  as  "well  as  the  affairs  of  their  sov- 
dipfomatic'min-^  ereign.  Louis  XI.  of  France  introduced  the 
18ters'  custom  of  sending  persons  of  an  inferior  sort, 

termed  Agents,  to  transact  his  affairs  without  representing 
his  person.  His  diplomacy  frequently  worked  in  secret. 
He  sometimes  sent  his  barber  on  an  occult  mission,  and  it 
is  obvious  that  his  purpose  would  have  been  defeated  by  an 
exhibition  of  state  ceremonial. 

Thus  matters  stood  at  the  beginning  of  the  seventeenth 
century,  when  permanent  legations  became  common.  Soon 
after  we  find  the  Agent  disappearing  from  the  ranks  of 
diplomatic  ministers,  and  becoming  merely  a person  ap- 
pointed by  a Prince  to  manage  his  private  business  at  a for- 
eign court.  But  the  distinction  between  the  representative 
of  his  sovereign’s  person  and  the  representative  of  his  sov- 
ereign’s affairs  continued  to  be  made.  The  first  was  called  an 
Ambassador,  the  second  an  Envoy  or  an  Envoy  Extraordinary . 
Below  the  Envoy  in  rank  came  at  the  beginning  of  the 
eighteenth  century  a third  class  called  Residents.  Yattel 
says  of  them  that  their  “representation  is  in  reality  of  the 
same  nature  as  that  of  the  Envoy,”  1 but  custom  undoubtedly 
ranked  them  below  the  second  order  of  diplomatic  ministers. 
Sometimes  they  had  no  Letters  of  Credence,  and  in  that  case 
their  mission  must  have  been  of  a semi-private  character. 
To  these  three  orders  of  diplomatic  agents  was  added  in  the 
eighteenth  century  a fourth,  that  of  Ministers.  According 
to  Yattel  this  was  done  to  avoid  the  constant  disputes  about 
precedence  which,  judging  from  their  number  and  bitter- 
ness, must  have  taken  up  no  small  portion  of  the  time  and 
energy  of  the  diplomatists  of  the  last  two  centuries.  He 
says  “ The  Minister,  represents  his  master  in  a vague  and 

1 Droit  des  Gens , IV.,  § 73. 


CONNECTED  WITH  DIPLOMACY. 


261 


indeterminate  manner,  which  cannot  be  equal  to  the  first  de- 
gree, and  consequently  makes  no  difficulty  in  yielding  to  an 
Ambassador.  He  is  entitled  to  all  the  regard  due  to  a person 
of  confidence  to  whom  the  sovereign  commits  the  care  of  his 
affairs,  and  he  has  all  the  rights  essential  to  the  character 
of  a public  minister.  ’ ’ 1 The  very  essence,  then,  of  a Min- 
ister was  the  indeterminate  character  of  his  position.  He 
was  “not  subjected  to  any  settled  ceremony,”  and  we  can- 
not therefore  rank  him  with  the  other  kinds  of  diplomatic 
agents.  The  only  thing  absolutely  fixed  about  him  was  that 
he  came  below  an  Ambassador  in  order  of  precedence. 
Sometimes  he  was  called  Minister  Plenipotentiary , a title 
which  seems  to  have  implied  higher  rank  than  simple  Min- 
ister.2 


The  foregoing  remarks  point  to  the  confusion  which 
existed  a hundred  years  ago  as  to  the  relative  rank  of  diplo- 
matic agents,  and  demonstrate  clearly  the  need 

° . . f , Classification 

•of  some  authoritative  classification.  At  the  Con-  of  diplomatic 

ministers. 

gress  of  Vienna  in  1815  an  attempt  was  made 
to  establish  by  general  consent  a regular  order  of  rank  and 
precedence.  The  result  was  the  establishment  of  the  three 
following  classes:  — 


(a)  Ambassadors  and  Papal  Legates  or  Nuncios.  These 

represented  the  person  and  dignity  of  their  sovereign 
as  well  as  his  affairs. 

( b ) Envoys,  Minister  Plenipotentiary,  and  others  accredited 

to  sovereigns. 

(c)  Charges  d’Affaires,  accredited  not  to  sovereigns,  but  to 

Ministers  of  Foreign  Affairs.3 

This  order,  however,  failed  to  reconcile  every  difference.  It 
had  been  agreed  that,  while  all  the  diplomatic  agents  belong- 

1 Droit  des  Gens,  IV.,  § 74.  2 C.  de  Martens,  Guide  Diplomatique,  § 11. 

3 Hertslet,  Map  of  Europe  by  Treaty,  I.,  62,  63. 


262 


RIGHTS  AND  OBLIGATIONS 


ing  to  a class  should  rank  before  any  of  the  class  below  it, 
within  a class  precedence  should  be  determined  according  to 
the  length  of  the  stay  of  each  individual  diplomatist  at  the 
Court  to  which  he  was  accredited.  But  in  practice  it  was 
found  that  the  Great  Powers  were  unwilling  to  allow  the 
Envoys  and  Ministers  of  minor  states  to  take  precedence  of 
their  representatives  of  the  second  class.  Accordingly  the 
Congress  of  Aix-la-Chapelle  of  1818  created  a class  of  Min- 
isters Resident  accredited  to  Sovereigns,  which  it  interpolated 
between  the  second  and  third  of  the  classes  agreed  upon  at 
Vienna.1  The  minor  states  could  thus  have  Ministers,  and 
yet  avoid  making  a claim  for  them  to  precedence  over  the 
Ministers  of  the  Great  Powers.  This  device  seems  to  have 
been  successful.  The  order  and  rank  of  diplomatic  agents 
is  now  settled  by  a general  agreement  to  recognize  the  four 
classes  above  described,  and  to  regulate  precedence  in  each 
class  by  length  of  residence.  Each  state  sends  what  kind 
of  representative  it  pleases,  the  only  restriction  being  the 
now  obsolete  one  that  none  but  states  enjoying  Royal  Honors 
can  send  Ambassadors.  States  agree  as  to  the  rank  of  their 
respective  agents  at  each  other’s  courts,  and  send  to  every 
neighbor  a representative  of  the  same  class  as  the  represen- 
tative they  receive  from  it.  Thus  when  in  1898  the  United 
States  resolved  for  the  first  time  in  their  history  to  employ 
diplomatic  agents  of  the  first  class,  they  accredited  Ambassa- 
dors to  Great  Britain,  France,  and  a few  other  great  powers 
who  were  willing  to  raise  their  Ministers  at  Washington  to 
ambassadorial  rank. 

Ambassadors  used  to  have  a right  to  a Solemn  Entry  into 
the  capital  of  the  state  to  which  they  were  sent.  This  took 
place  at  the  beginning  of  their  mission,  and  was  made  an 
occasion  of  great  display.  The  Ambassadors  of  other  states 
joined  in  the  procession  and  sometimes  quarrelled  for  pre- 
cedence. For  instance,  in  1661  an  armed  conflict  took  place 
on  Tower  Hill,  London,  between  the  retinues  of  the  French 
1 Hertslet,  Map  of  Europe  by  Treaty,  I.,  575. 


CONNECTED  WITH  DIPLOMACY. 


263 


and  Spanish  Ambassadors,  on  account  of  the  attempt  of  each 
to  follow  next  to  the  King  in  the  procession  formed  for  the 
Solemn  Entry  of  the  representative  of  Sweden.  In  the 
course  of  the  struggle  a Spaniard  ham-stringed  the  horses  of 
the  French  Ambassador’s  coach,  and  thus  enabled  the  Span- 
ish coach  to  take  the  coveted  place;  but  reparation  was 
afterwards  obtained  by  Louis  XIV.,  who  threatened  war 
should  it  be  refused.1  The  discontinuance  of  the  practice 
of  Solemn  Entry  renders  such  scenes  impossible  now.  Am- 
bassadors, as  representing  the  person  and  dignity  of  their 
sovereign,  are  held  to  possess  a right  of  having  personal  inter- 
views, whenever  they  choose  to  demand  them,  with  the  sov- 
ereign of  the  state  to  which  they  are  accredited.  But  modern 
practice  grants  such  interviews  on  suitable  occasions  to  all 
representatives  of  foreign  powers,  whatever  may  be  their  rank 
in  the  diplomatic  hierarchy.  Moreover  the  privilege  can  have 
no  particular  value,  because  the  verbal  statements  of  a mon- 
arch are  not  state  acts.  Formal  and  binding  international 
negotiations  can  be  conducted  only  through  the  Minister  of 
Foreign  Affairs. 

§ 144. 

Every  independent  member  of  the  family  of  nations  pos- 
sesses to  the  full  the  right  of  sending  diplomatic  ministers 
to  other  states  ; but  it  belongs  to  part-sov- 

. ...  , . , Sovereign  states 

ereign  communities  only  m a limited  form,  the  possess  the  right 

. i i*i  • . . „ of  legation 

exact  restrictions  upon  the  diplomatic  activity  of  fully ; part-sov- 

...  . . . ereign  states  pos- 

each  being  determined  by  the  instrument  which  sess  n to  a um- 

° J ited  extent. 

defines  its  international  position.  Egypt,  for 
instance,  under  the  Sultan’s  Firmans  of  1866  and  1867  may 
negotiate  commercial  and  postal  conventions  with  foreign 
powers,  provided  they  do  not  contain  political  arrange- 
ments ; and  to  this  condition  the  Firman  of  1879  added 
the  further  obligation  of  communicating  them  to  the  Porte 
before  they  are  published.2  In  the  case  of  the  looser  sort  of 

1 Ward,  History  of  the  Law  of  Nations,  II.,  458-462. 

2 Holland,  European  Concert  in  the  Eastern  Question,  pp.  116-128. 


264 


RIGHTS  AND  OBLIGATIONS 


Confederations  the  treaty-making  and  negotiating  power  of 
the  states  which  comprise  them  is  limited  by  the  Federal 
Pact.  Thus  each  member  of  the  German  Confederation 
which  existed  from  1815  to  1866  was  bound  not  to  do  any- 
thing in  its  alliances  with  foreign  powers  against  the  security 
of  the  Confederation  or  any  member  of  it,  and  when  war  was 
declared  by  the  Confederation  no  member  of  it  could  nego- 
tiate separately  with  the  enemy.1  Permanently  neutralized 
states  can  make  no  diplomatic  agreements  which  may  lead 
them  into  hostilities  for  any  other  purpose  than  the  defence 
of  their  own  frontiers.  Belgium,  for  instance,  though  she 
took  part  in  the  Conference  of  London  of  1867,  which 
decreed  and  guaranteed  the  neutralization  of  Luxemburg, 
did  not  sign  the  Treaty  of  Guarantee  because  it  bound  the 
signatory  powers  to  defend  the  Duchy  from  wanton  attack. 

§ 145. 

It  can  hardly  be  said  that  states  are  under  an  obligation 
to  send  and  receive  diplomatic  agents,  but,  as  without  them 
The  rupture  of  official  international  intercourse  would  be  im- 
tion sTs* aseriou s possible,  any  state  which  declined  to  make  use 
aify  euds'ln  wa”  of  them  would  ipso  facto  put  itself  out  of  the 
family  of  nations  and  beyond  the  pale  of  International  Law. 
No  civilized  state  is  likely  to  wish  to  do  this  ; and  therefore 
we  may  assume  with  confidence  that  all  such  states  will  ex- 
ercise their  Right  of  Legation.  But  a state  may  for  grave 
cause  temporarily  break  off  diplomatic  intercourse  with 
another  state.  Such  an  act  is,  however,  a marked  affront, 
and  is  therefore  the  sign  of  a rupture  which  only  just  falls 
short  of  war,  and  indeed  may  lead  to  it.  For  example,  in 
January,  1793,  Great  Britain  broke  off  diplomatic  inter- 
course with  France  owing  to  the  execution  of  Louis  XVI. 
on  the  21st  of  that  month,  and  ordered  Chauvelin,  the 
French  Ambassador,  to  leave  the  country.  A few  days 
1 Wheaton,  International  Law,  § 47. 


CONNECTED  WITH  DIPLOMACY. 


265 


later,  on  February  the  8th,  France  commenced  war.  When 
states  have  previously  determined  upon  war,  the  withdrawal 
of  the  diplomatic  representatives  on  both  sides  is  an  invaria- 
ble preliminary  or  concomitant  of  the  first  acts  of  hostility. 
But  unless  such  a resolve  has  been  taken,  it  is  possible  that 
the  displeasure  shown  by  the  cessation  of  diplomatic  inter- 
course may  pass  over  without  a rupture  of  peaceful  relations. 
This  occurred  in  connection  with  the  case  of  Sir  Henry  Bul- 
wer,  the  British  Ambassador  at  Madrid  in  1848.  He  was 
ordered  by  the  Spanish  Government  to  leave  the  country  on 
the  ground  that  he  had  been  concerned  in  aiding  rebellion. 
Diplomatic  intercourse  between  Great  Britain  and  Spain  was 
in  consequence  broken  off  for  two  years,  at  the  end  of  which 
time  it  was  resumed,  no  hostilities  having  taken  place  in  the 
meantime.1  It  is  obvious,  however,  that  this  mode  of  show- 
ing displeasure  is  not  suited  to  disagreements  between  two 
states  of  the  first  rank  ; for  the  amount  of  business  requir- 
ing the  attention  of  their  representatives  at  the  seat  of  each 
other’s  government  is  too  great,  and  its  nature  too  important, 
for  it  to  be  allowed  to  accumulate  or  remain  undone  with 
impunity. 

§146. 

Though  the  suspension  of  all  intercourse  is  a sign  of  rup- 
ture, yet  a state  may  without  offence  refuse  to  receive  a 
particular  individual  as  diplomatic  representa- 

. • n (i  • . • p • . i 1 Blit  & stiite  may 

tive  irom  one  oi  its  neighbors,  it  it  has  good  without  offence 
reasons  for  objecting  to  him.  The  fact  that  he  ground?  to  receive 

. ni*  i • c i a Particulai’  indi- 

is  personally  obnoxious  to  the  sovereign  ot  the  viduai,  or  ask  for 
country  to  which  it  is  proposed  to  send  him  is 
accepted  as  sufficient  ground  for  a refusal.  Thus  France 
declined  to  receive  the  Duke  of  Buckingham  as  Ambassador 
Extraordinary  from  Charles  I.  of  England,  because  on  a 
previous  visit  to  the  French  Court  he  had  posed  as  an  ardent 

1 Wheaton,  International  Law  (Boyd’s  ed.),  § 225  d. 


266 


EIGHTS  AND  OBLIGATIONS 


lover  of  the  Queen.1  But  should  the  objection  raised  be 
trivial,  the  government  which  proposed  to  send  the  repre- 
sentative is  not  bound  to  acquiesce  in  his  rejection.  A case 
of  this  kind  occurred  in  1885  when  Austria  declined  to 
receive  Mr.  Keiley  as  Minister  of  the  United  States  on  the 
ground  that  his  wife  was  a Jewess  and  that  he  was  married 
to  her  by  civil  contract  only.  President  Cleveland  declined 
to  cancel  his  appointment,  and  on  his  resignation  made  no 
new  nomination,  but  entrusted  the  interests  of  America  at 
Vienna  to  the  Secretary  of  Legation  acting  as  Charge  d’ Af- 
faires ad  interim .2 

Another  reason  for  rejecting  a diplomatic  representative 
is  public  and  pronounced  hostility  on  his  part  to  the  people 
or  institutions  of  the  country  to  which  he  is  accredited. 
The  same  Mr.  Keiley  who  was  refused  on  such  inadequate 
grounds  by  the  Government  of  Austria-Hungary  had  previ- 
ously been  refused  for  much  better  reasons  by  the  Italian 
Kingdom.  He  had,  according  to  Hall,3  “ openly  inveighed 
against  the  destruction  of  the  temporal  power  of  the  Pope”; 
and  as  its  overthrow  was  effected  by  the  arms  of  Italy,  and 
in  consequence  relations  of  pronounced  bitterness  existed 
between  the  Papacy  and  the  Italian  Government,  it  was 
hardly  to  be  supposed  that  his  mission  could  be  conducted 
in  an  acceptable  manner.  If  a proposed  representative  is 
one  of  the  subjects  of  the  state  to  which  he  is  sent,  it  may 
decline  to  receive  him  on  the  ground  that  the  immunities  of 
an  ambassador  are  incompatible  with  the  duties  of  a citizen. 
But,  should  he  be  received,  full  diplomatic  privileges  must 
be  accorded  to  him.  His  country  can  refuse  him,  or  accept 
him  on  conditions,  if  such  conditions  are  agreed  to  by  the 
power  which  sent  him,  but  having  once  received  him,  it  is 
not  at  liberty  to  exercise  any  authority  over  him  on  the 

1 Gardiner,  England  under  the  Duke  of  Buckingham  and  Charles  I.,  Vol. 
I.,  pp.  182,  183,  329. 

2 Wharton,  International  Law  of  the  United  States,  § 83. 

3 International  Law , p.  298,  note. 


CONNECTED  WITH  DIPLOMACY. 


267 


ground  that  he  is  a subject  and  therefore  amenable  to  its 
law.  This  point  was  raised  in  the  case  of  Sir  Halliday 
Macartney,  a British  subject  who  acted  as  Secretary  to  the 
Chinese  Legation  in  London.  An  attempt  was  made  in 
1890  to  compel  him  to  pay  local  rates  on  the  house  which 
he  occupied  ; but  it  was  decided  that  the  claim  could  not  be 
sustained,  since  he  had  been  received  without  conditions  in 
his  diplomatic  capacity  and  was  therefore  entitled  to  full 
diplomatic  immunities.1 

Just  as  a state  may  without  offence  decline  to  receive  any 
particular  person  as  the  diplomatic  representative  of  another 
state,  if  it  has  reasonable  grounds  for  its  refusal,  so  it  may 
demand  the  recall  of  a resident  Ambassador  or  other  agent 
who  has  made  himself  obnoxious  to  the  government  of  the 
country  or  the  head  of  the  state.  Such  a request  is  granted, 
if  there  is  good  reason  for  it,  and  if  the  Ambassador’s  coun- 
try desires  to  remain  on  friendly  terms  with  the  country 
which  demands  his  recall ; but  the  better  opinion  appears 
to  be  that  it  is  under  no  obligation  to  recall  merely  because 
it  is  informed  that  the  other  government  desires  to  be  rid 
of  the  individual  in  question.2  It  has  a right  to  ask  for 
reasons  and  to  judge  of  them ; and  though,  if  it  deems  them 
inadequate,  it  cannot  compel  the  authorities  of  the  other 
state  concerned  to  carry  on  diplomatic  business  with  the 
agent  whose  conduct  is  impugned,  it  may  decline  to  order 
him  home,  and  may  mark  its  sense  of  his  dismissal  by  leav- 
ing the  embassy  for  a time  in  charge  of  an  inferior  member 
of  its  diplomatic  service.  The  early  history  of  the  United 
States  affords  an  instance  of  the  recall  of  a diplomatic  min- 
ister on  a demand  caused  by  the  most  persistent  and  out- 
rageous provocation.  M.  Genet,  the  Minister  of  the  French 
Republic,  openly  violated  the  neutrality  of  the  United  States 
in  the  war  between  England  and  revolutionary  France.  He 
even  attempted  to  set  up  French  Prize  Courts  within  Amer- 

1 The  London  Times,  Feb.  25,  1890. 

2 Message  of  President  Harrison,  Jan.  25,  1892. 


268 


RIGHTS  AND  OBLIGATIONS 


ican  jurisdiction ; and,  instead  of  heeding  the  remonstrances 
addressed  to  him  by  the  administration  of  Washington,  en- 
deavored to  stir  up  popular  feeling  against  the  President 
and  his  Cabinet.  At  last  a request  was  made  for  his  recall ; 
and  the  French  Government  not  only  acceded  to  it  in  1794, 
but  asked  that  he  and  his  agents  might  be  sent  home  under 
arrest,  an  extreme  step  which  Washington  very  wisely  de- 
clined to  take.1  In  a much  more  recent  case  dismissal  was 
added  to  the  demand  for  recall.  In  the  course  of  the  Pres- 
idential campaign  of  1888  Lord  Sackville,  the  British  Min- 
ister at  Washington,  received  a communication  purporting 
to  come  from  a Mr.  Murchison,  a naturalized  American  citi- 
zen of  British  birth  resident  in  California.  The  letter  asked 
information  from  him  as  to  the  friendliness  of  the  existing 
administration  towards  Great  Britain,  and  intimated  that 
the  vote  of  the  writer  depended  upon  the  reply,  which 
should  “be  treated  as  entirely  secret.”  Lord  Sackville 
answered,  in  a communication  marked  “Private,”  that  it 
was  impossible  to  predict  the  course  which  Mr.  Cleveland 
would  take  towards  Great  Britain  if  he  were  re-elected,  hut 
that  in  the  writer’s  belief  the  party  in  power  was  desirous 
of  maintaining  friendly  relations  with  the  mother  country. 
The  letter  of  inquiry  turned  out  to  be  a trick  concocted  for 
election  purposes.  It  was  published  along  with  Lord  Sack- 
ville’s  reply,  and  distributed  broadcast  as  a campaign  docu- 
ment by  the  party  opposed  to  the  Cleveland  administration. 
In  the  midst  of  the  excitement  caused  by  it  the  British 
Minister  granted  an  interview  to  a representative  of  a New 
York  paper,  in  the  course  of  which  he  is  reported  to  have 
said,  “ Of  course  I understand  that  both  the  action  of  the 
Senate  and  the  President’s  letter  of  retaliation  were  for 
political  effect.”  Three  days  after  he  wrote  to  Mr.  Bayard, 
then  Secretary  of  State,  to  disclaim  any  intention  of  impugn- 
ing the  action  of  the  executive.  Under  these  circumstances 
his  recall  was  demanded  by  telegraph  on  the  27th  of  Octo- 
1 tVliarton,  International  Law  of  the  United  States,  § 84. 


CONNECTED  WITH  DIPLOMACY. 


269 


ber.  His  Government  felt  unable  to  come  to  a decision  till 
it  had  been  placed  in  possession  of  the  allegations  against 
him  and  the  evidence  on  which  they  were  founded ; but 
without  further  delay  he  was  dismissed  and  his  passport 
sent  to  him  on  the  30th  of  October.  The  British  Minister 
acted  with  an  absence  of  discretion  remarkable  in  an  experi- 
enced diplomatist.  But  he  was  deceived  by  a dishonorable 
artifice ; and  it  ill  became  the  country  tvhere  the  considera- 
tion due  to  a foreign  representative  had  been  so  strangely 
neglected  to  hurry  him  out  of  its  territory  before  his  own 
Government  had  an  opportunity  of  examining  the  evidence 
against  him.  Moreover,  a new  terror  will  be  added  to 
official  life,  if  the  case  is  to  be  taken  as  a precedent  for 
surrounding  private  communications  with  the  caution  hith- 
erto reserved  for  public  statements.1 


§147. 


A number  of  formal  observances  have  grown  up  with 
regard  to  the  reception  and  departure  of  diplomatic  min- 
isters. They  receive  from  their  own  Govern-  Commencement 

and  termination 
diplomatic  mis- 


ments  various  documents,  which  confer  on  and  terramat,on  of 


them  their  official  character,  and  give  them  monie^cpnnected6 
information  as  to  the  questions  they  are  ex-  therewlth- 
pected  to  deal  with  and  the  methods  to  be  followed  in  ne- 
gotiating upon  them.  First  and  most  important  among 
these  documents  is  the  Letter  of  Credence.  It  sets  forth  the 
name  of  the  diplomatic  agent  and  the  general  object  of  his 
mission,  and  requests  that  he  may  be  received  with  favor 
and  have  full  credit  given  to  what  he  says  on  behalf  of  his 
country.  It  is  generally  addressed  by  the  sovereign  who 
sends  to  the  sovereign  who  receives  the  minister ; but  in  the 
case  of  a Charg6  d’Affaires  it  is  written  by  Foreign  Min- 
ister to  F oreign  Minister ; and  when  the  head  of  a state  is 
a temporary  president  or  other  elected  officer,  Letters  of 

1 British  State  Papers,  United  States.  Nos.  3 and  4 (1888). 


270 


RIGHTS  AND  OBLIGATIONS 


Credence  are  addressed  not  to  him,  but  to  the  state  of  which 
he  is  for  the  time  being  the  chief  ruler.  Power  to  act 
generally  on  behalf  of  his  country  is  granted  by  the  Letter 
of  Credence  a diplomatist  takes  with  him  to  the  Court  where 
he  is  to  reside.  But  agents  charged  with  special  business 
receive  a document  called  their  Fall  Powers,  which  is  signed 
by  the  sovereign  they  represent  and  countersigned  by  his 
Minister  for  Foreign  Affairs.  The  most  common  of  these 
documents  are  the  General  Full  Poioers , which  give  author- 
ity to  their  possessor  to  negotiate  with  each  and  all  the 
states  represented  at  some  Congress  or  Conference.  They 
are  generally  delivered  to  the  presiding  plenipotentiary  at 
the  first  sitting  of  the  Conference,  or  exchanged  and  veri- 
fied by  the  diplomatists  present.  A duly  accredited  diplo- 
matic agent  carries  with  him,  in  addition  to  his  Letter  of 
Credence  or  his  Full  Powers,  a Passport  which  authorizes 
him  to  travel  and  describes  his  person  and  office.  In  time 
of  peace  it  is  a sufficient  protection  to  him  on  his  journey 
to  the  Court  to  which  he  is  sent  ; but  in  time  of  war  an 
ambassador  sent  to  the  enemy’s  Government  requires  a pass- 
port or  safe  conduct  from  it.  No  minister  starts  on  his 
mission  without  his  Instructions.  These  are  directions  given 
to  a diplomatic  agent  for  his  guidance  in  the  negotiations  he 
is  sent  to  conduct.  They  may  be  oral,  but  they  are  almost 
invariably  written.  He  is  not  to  communicate  them  to  the 
Government  to  which  he  is  accredited,  or  to  his  fellow  Pleni- 
potentiaries at  a Conference,  unless  specially  authorized  to 
do  so.  If  points  arise  on  which  he  is  without  instructions, 
or  on  which  he  deems  it  expedient  to  deviate  from  his  in- 
structions, he  must  refer  to  his  Government  for  directions. 
This  is  called  accepting  a proposal  ad  referendum ; and  it 
is  frequently  resorted  to  now  that  the  telegraph  and  steam 
have  made  communication  between  a government  and  its 
agents  at  a distance  rapid  and  easy.1 

1 Twiss,  Law  of  Nations , §§  212-214;  C.  de  Martens,  Guide  Diploma- 
tique, Ch.  IV. 


CONNECTED  WITH  DIPLOMACY. 


271 


When  a diplomatic  minister  reaches  the  capital  of  the 
country  to  which  he  is  accredited,  he  notifies  his  arrival 
to  the  Minister  for  Foreign  Affairs  and  demands  an  audi- 
ence of  the  sovereign  for  the  purpose  of  delivering  his 
Letters  of  Credence.  Ambassadors  are  entitled  to  a Pub- 
lic Audience,  whereas  ministers  of  the  second  and  third 
classes  have  only  a right  to  a Private  Audience,  and  Charges 
d’ Affaires  are  obliged  to  be  content  with  an  audience  of  the 
Foreign  Minister.  The  Public  Audience  is  more  ceremoni- 
ous than  the  Private  Audience,  but  at  both  the  Letters  of 
Credence  are  delivered  to  the  sovereign,  and  formal  speeches 
of  good-will  and  welcome  are  made  to  one  another  by  the 
two  parties  to  the  interview.  When  the  diplomatic  agent 
has  gone  through  this  ceremony  all  the  rights  and  immuni- 
ties of  public  ministers  attach  to  him  and  continue  till  the 
end  of  his  mission.  Previously  they  are  his  rather  by  cour- 
tesy than  of  right,  with  the  exception  of  personal  inviolability, 
which  he  possesses  from  the  moment  he  starts  to  fulfil  his 
mission.  On  the  departure  of  a minister  he  has  a similar 
formal  audience  to  present  his  Letters  of  Recall.  It  was 
once  a custom  to  give  presents  to  departing  diplomatists; 
and  during  the  seventeenth  century  a good  deal  of  energy 
seems  to  have  been  spent  in  quarrels  about  them;  for  if  the 
representative  of  one  sovereign  imagined  that  what  he  had 
received  was  of  less  value  than  what  had  been  given  to  the 
representative  of  another  sovereign,  he  deemed  his  master 
insulted  and  made  the  court  ring  with  his  complaints. 
Some  powers,  the  United  States  being  one  of  them,  have 
forbidden  their  diplomatic  agents  to  receive  these  formal  and 
official  parting  gifts,  and  they  have  now  fallen  into  disuse. 

There  are  numerous  ways  in  which  a diplomatic  mission 
can  be  terminated.  It  comes  to  an  end  by  the  death  or 
recall  of  the  minister,  or  by  the  expiration  of  the  time  fixed 
for  the  duration  of  the  mission,  or  by  the  success  or  failure 
of  its  special  purpose,  or  by  the  return  of  the  regular  minis- 
ter to  his  post  in  cases  where  a minister  has  been  accredited 


272 


RIGHTS  AND  OBLIGATIONS 


ad  interitn.  The  death  of  the  sovereign  to  whom  the  diplo- 
matic agent  is  accredited,  or  the  death  of  his  own  sovereign, 
terminates  the  mission  in  the  case  of  monarchical  states; 
but  the  election  of  a new  chief  magistrate  of  a Republic 
makes  no  difference  in  this  respect.  If  a minister  is  sent 
away  in  consequence  of  having  given  grave  offence,  or  if  he 
goes  away  in  consequence  of  having  received  grave  offence, 
whether  offered  to  himself  personally  or  to  the  state  which 
he  represents,  his  mission  is  in  both  cases  brought  to  an  end. 
Moreover  it  is  technically  terminated  by  a change  in  his 
diplomatic  rank;  but  in  such  a case  he  presents  at  the  same 
time  his  Letters  of  Recall  in  his  old  capacity  and  his  Letters 
of  Credence  in  his  new  capacity,  and  thus  commences  a new 
official  life  at  the  moment  of  the  dissolution  of  his  former 
one.  Strictly  speaking  the  death  of  a diplomatic  minister 
terminates  all  the  immunities  enjoyed  by  those  dependent 
on  him;  but  kindness  and  courtesy  demand  that  they  be 
continued  for  a limited  time  to  his  widow  and  children,  in 
order  to  give  them  the  means  of  winding  up  his  affairs  and 
removing  from  the  country.1 


§ 148. 

In  addition  to  its  purely  diplomatic  agents  each  civilized 
state  maintains  in  the  territory  of  its  neighbors  commercial 
agents,  called  Consuls,  whose  duty  it  is  to 

CodsuIs  — their  & J 

position  and  im-  assist  merchants  and  seamen  of  the  country 

munities.  _ ^ 

which  employs  them,  and  generally  to  further 
the  interests  of  its  commerce.  They  are  not  clothed  with 
the  diplomatic  character,  neither  are  they  concerned  with 
public  affairs.  They  are  appointed  by  the  sovereign  of  the 
country  whose  agents  they  are,  and  they  receive  from  the 
Foreign  Office  of  the  state  where  they  reside  a document 
called  an  Exequatur,  which  authorizes  them  to  act  as  Con- 
suls in  that  state,  and  to  hold  official  communication  with 
1 C.  de  Martens,  Guide  Diplomatique,  Ch.  IX. 


CONNECTED  WITH  DIPLOMACY. 


273 


the  functionaries  of  its  home  administration.  They  may  be 
natives  of  the  country  which  uses  their  services,  or  natives 
of  the  country  in  which  they  fulfil  their  duties,  or  natives  of 
third  countries  domiciled  in  the  country  where  they  act. 
They  are  often  engaged  in  trade;  but  some  states  forbid  the 
members  of  their  regular  Consular  Service  from  engaging  in 
mercantile  transactions  on  their  own  account.  In  Moham- 
medan countries,  and  in  the  East  generally,  Consuls  are 
placed  by  treaty  stipulations  on  a very  different  footing 
from  that  which  they  occupy  in  Western  states.  They  exer- 
cise jurisdiction,  as  we  saw  when  dealing  with  the  subject,1 
over  citizens  of  the  state  whose  agents  they  are,  and  in  the 
exercise  of  this  jurisdiction  judicial  functions  necessarily  fall 
upon  them.  In  order  to  protect  them  they  have  a large 
share  of  the  diplomatic  immunities  denied  to  Consuls  else- 
where. In  times  of  disturbance  or  popular  violence  their 
Consulates  are  used  as  places  of  refuge  for  their  compatriots 
and  for  others  whose  lives  are  in  danger;  and  when  the  flag 
of  their  country  is  hoisted  over  these  buildings  they  are  held 
to  be  inviolable.  Moreover  it  seems  that  in  several  of  the 
South  and  Central  American  Republics  Consuls  are  used  as 
agents  for  political  purposes  and  accredited  as  Charges 
d’Affaires.  In  such  cases  the  diplomatic  character  attaches 
to  them  and  the  consular  character  is  merged  in  it.  They 
gain  the  immunities  of  public  ministers  and  must  be  treated 
as  such.  But  these  cases  are  exceptional  and  anomalous. 
The  general  rule  about  Consuls  is  that  they  are  commercial, 
not  diplomatic,  agents.  They  are  under  the  local  law  and 
jurisdiction,  and  their  residences  are  not  held  to  be  exempt 
from  the  authority  of  the  local  functionaries.  But  as  a mat- 
ter of  comity  which  can  hardly  be  distinguished  from  strict 
right  the  official  papers  and  archives  of  the  consulate  are  not 
liable  to  seizure,  and  soldiers  may  not  be  quartered  in  its 
buildings,  nor  may  the  Consul  himself  be  compelled  to  serve 
in  the  army  or  militia.2 

1 See  § 131.  2 Halleck,  International  Law  (Baker’s  ed.),  II.,  313  et  seq. 


274 


RIGHTS  AND  OBLIGATIONS 


§ 149‘ 

Several  times  already  we  have  had  occasion  to  mention 
that  diplomatic  ministers  resident  at  foreign  courts  possess 
Diplomatic  immu-  many  immunities.  Speaking  generally  we  may 
general  nature  and  say  that  they  and  their  suites  are  exempt  from 

the  reason  for  their  . , *■ 

existence.  the  local  jurisdiction.  A good  deal  of  doubt 

exists  as  to  the  exact  limits  of  their  exemption;  but  the 
reason  for  its  existence  is  clear.  An  ambassador  could  not 
attend  to  the  interests  of  his  country  with  perfect  freedom 
and  absolute  fearlessness,  if  he  were  liable  to  be  dealt  with 
by  the  local  law  and  subjected  to  the  authority  of  the  offi- 
cers of  the  state  to  which  he  was  sent.  In  considering  the 
nature  and  extent  of  diplomatic  privileges  it  will  be  con- 
venient to  divide  them  into  Immunities  connected  with  the 
Person  and  Immunities  connected  with  Property , and  to  con- 
sider each  class  separately,  though  the  line  of  demarcation 
between  them  is  not  always  easy  to  draw. 


§ 150. 


Immunities  connected  with  the  Person  are  granted  in  the 
fullest  degree  to  public  ministers  and  those  of  their  suite 
immunities  con-  wh°  Possess  the  diplomatic  character  and  there- 
"erson onhedip-  f°re  hold  a privileged  position  in  their  own 

omatic  agent. 


P 

lc 


right,  and  in  a lesser  measure  to  the  minister’s 
wife,  children,  private  secretary,  chaplain  and  servants,  who 
are  necessary  for  his  comfort  and  convenience,  but  do  not 
belong  to  the  diplomatic  service  of  his  country.  With 
regard  to  all  matters  settled  by  the  lex  domicilii , the  legal 
position  of  diplomatic  agents  resident  abroad  is  that  of  per- 
sons resident  in  their  own  country.  As  to  their  private 
rights  and  obligations,  they  are  subject  to  the  law  of  the 
state  which  sends  them  ; and  all  children  born  to  them 
abroad  are  held  to  be  subjects  of  their  own  country.  They 
cannot  be  arrested  unless  they  are  actually  engaged  in  plot- 


CONNECTED  WITH  DIPLOMACY. 


275 


ting  against  the  security  of  the  state  to  which  they  are  ac- 
credited, and  even  in  such  an  extremity  application  for  their 
recall  should  first  be  made  unless  the  matter  is  too  urgent 
for  delay.  This  view  of  the  law  is  upheld  by  the  case  of 
Count  Gyllenborg,  which  occurred  in  1717.  He  was  Swedish 
Ambassador  to  England,  and  while  acting  in  that  capacity 
had  made  himself  one  of  the  prime  agents  in  a conspiracy 
to  overthrow  George  I.  and  set  the  old  Pretender  on  the 
English  throne.  The  Courts  of  Sweden  and  Spain  were 
concerned  in  the  plot  along  with  the  English  Jacobites,  and 
one  of  its  leading  features  was  the  invasion  of  Scotland  by 
12,000  Swedish  troops.  The  British  Government  obtained 
a clue  to  the  conspiracy  by  intercepting  some  letters.  They 
therefore  arrested  Gyllenborg  and  seized  his  diplomatic  doc- 
uments, in  which  they  found  full  proof  of  all  they  had  sus- 
pected. In  consequence  they  detained  the  Count  as  a pris- 
oner, till  he  was  exchanged  for  the  English  Ambassador  to 
Sweden,  who  had  been  arrested  in  retaliation.  The  minis- 
ters of  foreign  powers  in  London  protested  against  Gyllen- 
borg’s  arrest  as  a breach  of  International  Law  ; but  when 
the  reasons  for  it  were  explained  to  them,  all  except  the 
Spanish  Ambassador  professed  themselves  satisfied  ; and,  as 
Spain  was  one  of  the  parties  to  the  plot,  its  protests  were  of 
little  value.1  There  can  be  no  doubt  that  the  British  Gov- 
ernment was  right  in  the  main,  though  in  these  days  a min- 
ister in  Gyllenborg’s  position  would  merely  be  escorted  out 
of  the  country.  In  the  very  next  year  the  French  Regent 
ordered  the  arrest  of  the  Prince  of  Cellar  mare,  the  Spanish 
Ambassador  at  Paris,  who  had  been  engaged  in  a conspiracy 
to  seize  the  Duke  of  Orleans  and  proclaim  the  King  of  Spain 
Regent  of  France  in  his  stead,  with  the  Duke  of  Maine  as 
Deputy.2  On  this  occasion  no  protests  were  made  by  third 
powers  ; and  the  two  cases  together  may  be  held  to  have 

1 Ward,  History  of  the  Law  of  Nations,  II.,  548-550 ; C.  de  Martens, 
Causes  Celebres,  I.,  75-138. 

2 C.  de  Martens,  Causes  Celebres,  I.,  139-173. 


276 


RIGHTS  AND  OBLIGATIONS 


conclusively  established  the  doctrine  that  a foreign  minis- 
ter’s inviolability  does  not  extend  to  cover  acts  done  against 
the  safety  of  the  Government  to  which  he  is  accredited.  It 
must,  however,  be  remembered  that  he  may  not  be  tried  and 
punished  by  the  offended  state.  It  has  no  jurisdiction  over 
him  ; and  its  right  to  deal  forcibly  with  him  at  all  is  based 
upon  and  limited  by  considerations  of  safety  and  self-defence. 

Visitors  and  hangers-on  of  the  embassy  do  not  possess 
the  privilege  of  personal  inviolability,  but  come  under  the 
jurisdiction  of  the  state  in  whose  territory  they  are.  This 
was  settled  by  a case  which  arose  in  1653.  In  that  year 
Don  Pantaleon  Sa,  the  brother  of  the  Portuguese  Ambassador 
in  England,  committed  murder  under  circumstances  of  pecu- 
liar atrocity.  He  got  into  a quarrel  at  the  London  Exchange 
with  Colonel  Gerhard,  and  set  upon  him  with  a band  of 
attendants.  The  Colonel  was,  however,  rescued  ; but  the 
next  night  Sa  came  to  the  Exchange  with  fifty  armed  Por- 
tuguese, and  commenced  a general  attack  on  all  who  were 
there,  one  man  being  killed  and  several  wounded  before  the 
horse-guards  came  and  put  down  the  riot.  The  Ambassador 
gave  up  the  delinquents,  but  Don  Pantaleon  declared  that 
he  was  clothed  with  the  diplomatic  character,  and  claimed 
to  be  under  no  jurisdiction  but  that  of  the  King  of  Portu- 
gal. It  was,  however,  shown  that  he  was  not  an  ambas- 
sador at  the  time,  but  had  only  received  from  his  sovereign 
a promise  that  he  should  be  accredited  as  Ambassador  on 
the  recall  of  his  brother,  which  was  momentarily  expected. 
His  brother,  the  real  Ambassador,  interceded  for  him  ; but 
Cromwell  allowed  the  law  to  take  its  course,  and  he  was 
tried,  convicted  and  hung.1  His  real  position  seems  to  have 
been  somewhat  doubtful.  He  certainly  was  not  the  head 
of  the  Portuguese  Legation,  and  therefore  Hale  is  mistaken 
in  supposing  that  his  case  supports  the  contention  that  an 
ambassador  may  be  tried  for  murder.2  If  lie  is  to  be  re- 

1 Ward,  History  of  the  Law  of  Nations , II.,  535-546. 

2 Hale,  Pleas  of  tlic  Crown , I.,  9!), 


CONNECTED  WITH  DIPLOMACY. 


277 


garcled  as  a member  of  his  brother’s  suite,  all  we  can  say 
is  that  International  Law  has  developed  since  his  time  and 
would  not  now  permit  a trial  and  execution  under  similar 
circumstances  by  the  authorities  of  the  state  where  the  crime 
was  committed.  But  if  he  was  simply  a visitor  at  the  em- 
bassy, he  would  not  be  protected  by  diplomatic  immunity  to- 
day any  more  than  he  was  two  hundred  and  forty  years  ago. 

A public  minister  is  free  from  legal  process  as  well  as  from 
personal  restraint.  He  cannot  be  compelled  to  appear  in 
court  and  plead  ; but  if  he  chooses  to  waive  his  privilege, 
the  courts  will  deal  with  him  either  as  plaintiff  or  defend- 
ant. Having  submitted  himself  to  their  jurisdiction,  he  is 
bound  to  go  through  all  that  is  needful  to  the  due  conduct 
of  the  case.  He  cannot,  for  instance,  refuse  to  answer  awk- 
ward questions  in  cross-examination  on  the  plea  of  diplo- 
matic immunity.  The  question  whether  he  may  waive  his 
privileges  himself,  or  whether  his  Government  is  alone  com- 
petent to  do  so,  is  one  to  be  decided,  not  by  International 
Law,  but  by  the  law  of  each  separate  state  for  its  own  diplo- 
matic agents.  If  the  evidence  of  the  minister  of  a foreign 
power  is  required  in  an  important  case,  he  must  be  requested 
to  appear  and  give  it ; but  he  cannot  be  compelled  to  do  so. 
Rather  than  defeat  the  ends  of  justice  ambassadors  will 
generally  consent  to  waive  their  immunity  and  give  the 
required  testimony.  But  in  1856  the  Dutch  Minister  at 
Washington,  who  was  an  essential  witness  in  a case  of 
murder,  refused  to  appear  in  open  court,  though  he  was 
willing  to  make  a deposition  on  oath.  His  Government 
declined  to  order  him  to  give  evidence  publicly,  and  the 
United  States  demanded  his  recall  in  consequence  ; but 
they  could  not  force  him  to  appear  and  testify.1  At  the 
trial  of  Guiteau  for  the  assassination  of  President  Garfield, 
the  Minister  of  Venezuela  appeared  as  a witness  and  gave 
his  testimony  in  open  court.2 

1 Wheaton,  International  Law  (Lawrence’s  ed.),  pp.  393,  394. 

2 Wharton,  International  Law  of  the  United  States,  § 98. 


278 


RIGHTS  AND  OBLIGATIONS 


When  permanent  legations  were  first  established  by  states 
at  one  another’s  courts,  many  extreme  pretensions  were  put 
forward  by  ambassadors,  and  among  them  was  the  claim  to 
exercise  civil  and  criminal  jurisdiction  over  the  members  of 
their  suites  according  to  the  laws  of  their  own  country. 
But  in  modern  practice  no  such  right  is  conceded,  and  it 
would  not  now  be  demanded.  In  civil  matters  the  utmost 
a diplomatic  minister  can  do  is  to  authenticate  testaments 
and  contracts  made  before  him  by  members  of  his  suite  ; and 
his  chaplain  may  solemnize  marriages  between  subjects  of 
the  state  which  has  accredited  him  in  the  chapel  of  the 
embassy,  if  the  laws  of  their  country  allow  it  ; but  there  is 
great  doubt  and  great  diversity  of  practice  with  regard  to 
the  marriage  of  foreigners,  or  marriages  between  a subject 
of  the  ambassador’s  state  and  a foreigner.1  In  criminal 
matters  which  arise  between  members  of  his  suite,  the  head 
of  the  legation  takes  and  prepares  the  evidence,  but  sends 
the  accused  home  for  trial ; and  he  possesses  a similar  power 
as  to  the  servants  of  the  embassy,  though  its  limits  are  un- 
certain and  disputable. 

There  has  been,  and  still  is,  some  difference  of  opinion 
among  jurists  as  to  whether  a diplomatic  agent,  travelling 
to  his  destination  through  the  territories  of  third  powers  at 
peace  with  his  sovereign,  is  entitled  within  them  to  full  per- 
sonal inviolability,  or  whether  he  can  expect  only  the  protec- 
tion given  to  an  ordinary  traveller.  Probably  as  a matter 
of  strict  right  the  latter  is  all  that  can  be  demanded;  but 
the  comity  of  nations  would  dictate  the  recognition  of  the 
ambassadorial  character  and  the  protection  of  the  foreigner 
clothed  with  it  from  all  molestation  on  his  passage  through 
the  territory  to  his  proper  destination,  though  it  may  well 
be  doubted  whether  immunity  should  be  granted  to  him  if 
he  made  a stay  of  considerable  length  in  the  country.  A 
belligerent  can,  of  course,  capture  his  enemy’s  ambassadors 
in  any  place  where  it  is  lawful  for  him  to  carry  on  hostili- 
1 Hall,  International  Law,  pp.  181,  182,  and  note. 


CONNECTED  WITH  DIPLOMACY. 


279 


ties,  unless  he  has  himself  provided  them  with  a safe-con- 
duct. It  seems  to  be  settled  that  Commissioners  appointed 
in  accordance  with  treaty  stipulations  for  special  purposes, 
such  as  the  marking  out  of  a frontier  or  the  superin- 
tendence of  a military  evacuation,  have  no  right  to  diplo- 
matic immunities.  A British  Commissioner  appointed  under 
the  Treaty  of  1794  was  tried  for  an  offence  against  the  local 
law  by  an  American  court  at  Philadelphia,  and  the  English 
Government  made  no  complaint.1 

The  immunities  of  the  members  of  a diplomatic  minister’s 
family  and  household  are  granted  to  them  because  his  com- 
fort and  dignity  could  not  be  properly  provided  for  unless 
they  were  free  to  a great  extent  from  the  local  jurisdiction. 
His  wife  not  only  shares  his  personal  inviolability,  but  is 
also  a partaker  of  the  ceremonial  honors  paid  to  him.  His 
children  occupy  a similar  position;  and  his  chaplain  and 
private  secretary  are  certainly  free  from  arrest,  as  also  are 
the  messengers  and  couriers  attached  to  the  embassy.  It  is 
generally  held  that  the  regular  servants  of  the  minister,  as 
distinct  from  such  persons  as  workmen  temporarily  employed 
about  the  premises  or  individuals  who  give  up  but  a small 
portion  of  their  time  to  their  duties  in  connection  with 
embassy,  are  exempt  from  the  local  jurisdiction.  But  there 
is  no  uniform  practice  as  to  the  extent  of  their  immunities, 
nor  is  there  any  agreement  among  the  authorities  as  to  what 
their  privileges  ought  to  be.  The  law  of  England  on  the 
subject,  as  embodied  in  a statute2  which  is  always  held  by 
British  judges  to  be  declaratory  of  the  law  of  nations,  declares 
void  all  writs  and  processes  issued  against  them,  unless  they 
are  traders.  But  in  criminal  matters  the  British  authorities 
claim  a right  to  exercise  jurisdiction  over  the  servants  of 
the  embassy,  if  the  offence  is  committed  outside  the  min- 
ister’s residence.  In  most  countries  they  would  not  be 
arrested  without  the  special  permission  of  the  ambassador; 

1 Wharton,  International  Law  of  the  United  States,  § 93  a. 

2 7 Anne,  c.  12. 


280 


RIGHTS  AND  OBLIGATIONS 


and  in  modern  times  difficulties  are  generally  prevented  by 
tlie  exercise  of  tact  and  judgment.  If  the  servant  of  a pub- 
lic minister  commits  a criminal  offence,  his  master  either 
dismisses  him  from  his  service,  and  thus  puts  an  end  at 
once  to  all  claim  for  immunity,  or  hands  him  over  to  the 
local  authorities  to  be  dealt  with  according  to  their  law. 
Only  when  the  offence  is  a serious  one,  and  is  committed 
within  the  residence  of  the  minister,  does  he,  as  a rule, 
arrest  the  perpetrator  and  send  him  home  for  trial.  In 
civil  cases  he  grants  permission  for  his  servants  to  be  pro- 
ceeded against  in  the  local  courts.  In  order  to  avoid  mis- 
understandings and  controversies  as  to  the  persons  entitled 
to  immunity,  most  states  require  the  heads  of  the  foreign 
legations  to  send  periodically  to  the  Secretary  for  Foreign 
Affairs  a list  of  the  members  of  their  suites  and  the  servants 
in  their  employ. 

4 § 151. 


Immunities  connected  with  Property  apply  first  and  fore- 
most to  the  official  residence  of  the  ambassador,  usually 
immunities  con-  called  his  Hotel.  It  is  generally  regarded  as 
proper tyo? the  inviolable  except  in  cases  of  great  extremity, 
diplomatic  agent,  rp]ie  qcfqon  0f  ex-territoriality  is  sometimes 

applied  to  it,  and  it  is  held  to  be  a portion  of  the  state  to 
which  its  occupant  belongs.  But,  as  in  other  cases,  so  in 
this,  the  theory  is  a clumsy  attempt  to  account  for  what  is 
better  explained  without  it.  If  it  ivere  true,  the  Hotel 
could  in  no  case  be  entered  by  the  local  authorities  ; 
whereas  it  is  universally  admitted  that  the  extreme  cir- 
cumstances which  justify  the  arrest  of  a diplomatic  minis- 
ter of  a foreign  power  and  the  seizure  of  his  papers,  justify 
also  forcible  entry  into  his  Hotel  and  its  search  by  the  offi- 
cers of  the  state  to  which  he  is  sent.  Moreover  it  is  now 
settled  that  in  European  countries  ambassadors  do  not  pos- 
sess a right  of  giving  asylum  in  their  residences  to  criminals 
and  refugees,  though  in  the  last  century  they  were  disposed 


CONNECTED  WITH  DIPLOMACY. 


281 


to  claim  it.  There  appears,  however,  to  be  a binding  cus- 
tom in  favor  of  harboring  political  refugees  in  the  South 
and  Central  American  states,  and  in  Oriental  countries. 
The  frequent  revolutions  in  the  former  group  of  states, 
and  the  barbarous  treatment  of  political  offenders  in  the 
latter,  are  held  to  justify  a departure  from  the  ordinary 
rule.  The  reception  of  Balmacedist  refugees  by  Mr.  Egan, 
the  United  States  Minister,  in  the  course  of  the  Chilian 
revolution  of  1891,  is  a case  in  point.1 

Some  states  do  not  recognize  the  immunities  of  the 
ambassador’s  residence  as  existing  to  the  extent  usually 
claimed.  France  holds  that  the  privileges  of  the  Hotel  do 
not  extend  to  acts  done  within  it  affecting  the  inhabitants 
of  the  country  in  which  it  is  situated.2  Great  Britain 
claims  the  right  of  arresting  servants  of  the  embassy  within 
the  precincts  of  the  Hotel.  This  was  clearly  shown  by  a 
case  which  occurred  in  1827,  when  the  coachman  of  Mr. 
Gallatin,  the  American  Minister  in  London,  was  arrested  in 
his  stable  by  the  local  authorities  on  a charge  of  assault  com- 
mitted outside  the  embassy.  The  attention  of  the  British 
Foreign  Office  was  called  informally  to  the  subject ; and  in 
reply  it  was  asserted  that  the  law  did  not  extend  ‘ ‘ to  pro- 
tect mere  servants  of  ambassadors  from  arrest  upon  criminal 
charges,”  and  that  the  premises  occupied  by  a diplomatic 
minister  were  not  entitled  to  inviolability.  The  magistrates 
who  issued  the  warrant  were,  however,  told  that  they  ought 
to  have  informed  the  Minister  of  what  they  had  done,  in 
order  that  his  convenience  might  be  consulted  as  to  the  time 
and  manner  of  making  the  arrest.3  The  attitude  of  France 
and  Great  Britain  in  this  matter  is  rather  an  exception  to 
the  general  practice  of  states  than  an  example  of  the  en- 
forcement of  an  ordinary  rule.  But  it  must  be  admitted 

1 Correspondence  accompanying  President  Harrison's  Message  of  Jan.  25, 

1892. 

2 Hall,  International  Law,  § 52. 

3 Wharton,  International  Law  of  the  United  States,  § 94. 


282 


RIGHTS  And  OBLIGATIONS 


that  the  exact  limits  of  the  inviolability  of  the  Hotel  are 
ill-defined.  The  ambassador  is  free  from  the  payment  of 
taxes  levied  upon  it,  whether  for  purposes  of  state  or  for 
the  maintenance  of  municipal  government ; but  if  the  charge 
for  such  commodities  as  light  and  water  takes  the  form  of 
local  taxation,  he  would  be  expected  to  meet  the  demands 
for  them,  just  as  he  is  expected  to  pay  the  bills  for  the  pro- 
visions consumed  by  his  household,  though  he  cannot  be 
compelled  to  do  so,  since  his  person  is  inviolate  and  his 
house  and  goods  exempt  from  legal  process.  The  other 
official  property  of  the  embassy  shares  the  immunities  of 
the  Hotel.  It  may  not  be  seized,  distrained  upon,  or  dealt 
with  in  any  way,  except  in  extreme  cases  of  state  necessity. 

Among  the  privileges  covered  by  the  principle  of  the 
general  inviolability  of  the  official  residence  of  the  legation 
one  of  the  most  important  is  the  celebration  of  divine  wor- 
ship within  it  in  the  form  desired  by  the  ambassador,  even 
though  it  is  proscribed  by  the  country  in  which  he  resides. 
But  he  may  not  give  public  notification  of  the  services  by 
ringing  a bell  or  in  any  other  way,  nor  may  he  allow  sub- 
jects of  the  country  to  which  he  is  accredited  to  be  present, 
if  attendance  at  such  worship  is  forbidden  by  their  law. 

Some  writers 1 hold  that  diplomatic  ministers  are  liable  to 
suits  in  the  local  tribunals,  and  other  processes  under  the 
law  of  the  country  to  which  they  are  accredited,  in  all  cases 
in  which  their  private  property  in  that  country  is  con- 
cerned. Their  transactions  as  traders,  executors,  trustees, 
or  indeed  in  any  capacity  but  their  official  one,  are  held  to 
render  them  amenable  to  the  local  jurisdiction  as  far  as 
those  transactions  are  concerned.  It  is,  of  course,  admitted 
that  the  person  of  a diplomatic  agent  is  inviolable ; and 
therefore  the  doctrine  amounts  to  no  more  than  an  assertion 
that  lie  must  submit  to  proceedings  directed  against  the 
property,  in  such  cases  as  we  have  described.  It  may  be 

1 For  example,  Woolsey,  International  Law , §§  92,  96;  Calvo,  Droit 
International  § 592. 


CONNECTED  WITH  DIPLOMACY. 


283 


doubted,  however,  how  far  this  view  is  consistent  with 
sound  principle  or  borne  out  by  practice.  The  law  of  the 
United  States  prohibits  the  service  of  writs  upon  the  resi- 
dent ministers  of  foreign  states,  and  considers  those  who 
sue  out  or  enforce  processes  against  them  as  guilty  of  an 
indictable  offence,  even  though  they  are  ignorant  of  their 
diplomatic  character.1  In  England  not  only  are  the  persons 
of  diplomatic  ministers  inviolable,  but  all  writs  and  processes 
whereby  “their  goods  and  chattels  may  be  distrained,  seized 
or  attacked”  are  “utterly  null  and  void,”  and  all  con- 
cerned in  obtaining  such  writs  or  processes  are  subject  to 
severe  punishment.2  The  law  of  other  leading  countries 
contains  similar  provisions  ; and  though  cases  can  be  found 
in  favor  of  drawing  a distinction  between  the  private  and 
the  official  property ' of  a public  minister,  they  are  not  of 
recent  date.  In  1720  the  Envoy  of  the  Duke  of  Holstein 
in  Holland  had  all  his  goods,  except  what  were  official  in 
their  nature,  seized  for  debts  contracted  by  him  in  the 
course  of  trade;  but  his  treatment  can  hardly  be  quoted  as 
a precedent  to-day.3  Dana  forcibly  points  out4  the  incon- 
venience to  a minister  of  being  obliged  to  appear  and  liti- 
gate, lest  judgment  should  go  against  him  by  default.  The 
extension  of  diplomatic  immunities  to  all  property  possessed 
by  the  agents  of  foreign  countries  does  not  leave  those  who 
might  suffer  in  consequence  of  it  absolutely  helpless.  Most 
states  now  forbid  their  representatives  abroad  to  engage  in 
trade,  and,  as  to  other  matters,  the  remedy  by  diplomatic 
complaint  or  an  appeal  to  the  courts  of  the  ambassador’s 
own  country  will  generally  be  sufficient. 

Goods  sent  from  abroad  for  the  use  of  an  embassy  are 
generally  admitted  duty  free.  But  the  privilege  is  granted 
rather  as  a matter  of  comity  than  of  right.  Precautions 

1 Wharton,  International  Law  of  the  United  States,  § 93. 

2 7 Anne,  c.  12. 

3 Bynkersboek,  Be  Foro  Legatorum,  Ch.  XVI. 

4 Note  to  Wheaton’s  International  Law,  p.  307. 


284 


RIGHTS  AND  OBLIGATIONS 


may  be  taken  against  the  abuse  of  it,  and  on  proof  that  it 
has  been  used  to  cover  a contraband  trade  it  may  be  with- 
drawn. 

§ 152. 

We  will  now  pass  on  to  consider  the  treaty-making  power 
and  its  methods  of  action,  in  so  far  as  they  are  dealt  with 
by  International  Law.  In  each  state  the  right 

The  treaty-making  . ... 

power.  Ratifica-  of  making  treaties  rests  with  those  authorities 

tion  of  treaties.  0 . 

to  whom  it  is  confided  by  the  political  con- 
stitution.  As  long  as  there  is  some  power  in  a country 
whose  word  can  bind  the  whole  body  politic,  other  states 
must  do  their  international  business  with  it,  and  have  no 
right  to  inquire  into  its  nature  and  the  circumstances  of  its 
creation.  But  other  important  matters  connected  with 
treaties  are  of  international  concern.  The  first  of  these  to 
be  discussed  is 

The  nature  and  necessity  of  ratification. 

Ratification  is  a formal  ceremony  whereby,  some  time  after 
a treaty  has  been  signed,  solemn  confirmations  of  it  are 
exchanged  by  the  contracting  parties.  No  treaty  is  binding 
without  ratification,  unless  there  is  a special  agreement  to 
the  contrary.  The  full  powers  given  to  Plenipotentiaries 
must  be  understood  as  conferring  a right  to  conclude  agree- 
ments subject  to  the  ultimate  decision  of  the  governments 
which  they  represent.  Sometimes,  however,  it  is  agreed 
that  certain  preliminary  engagements  in  a treaty  shall  take 
effect  immediately,  without  waiting  for  the  exchange  of 
ratifications,  as  was  the  case  with  the  Treaty  of  London  of 
1840  for  the  settlement  of  the  Egyptian  Question.  A re- 
served protocol  annexed  to  it  stipulated  that  the  preliminary 
measures  mentioned  in  the  second  article  should  be  carried 
out  at  once.1  But  when  a treaty  is  ratified,  its  legal  effects 
are  held  to  date  from  the  moment  of  signature,  unless,  as 
1 Holland,  European  Concert  in  the  Eastern  Question,  pp.  90-97. 


CONNECTED  WITH  DIPLOMACY. 


285 


was  the  case  with  the  Treaty  of  Paris  of  1856,  it  is  agreed 
that  they  shall  come  into  force  from  the  moment  of  ratifica- 
tion.1 To  this  rule  Treaties  of  Cession  are  an  exception  ; 
for  it  is  undoubted  law  that  they  commence  to  operate  from 
the  time  of  the  actual  transfer  of  the  ceded  territory.2 

The  question  whether  a state  is  bound  to  ratify  a treaty 
signed  by  its  lawful  representatives  is  sometimes  argued  at 
great  length  by  text-writers.  But  a reference  to  practice 
robs  it  of  its  difficulties.  When  the  ratifying  power  and 
the  treaty-making  power  are  placed  by  the  constitution  of 
a state  in  different  hands,  there  cannot  be  the  slightest 
obligation,  moral  or  legal,  for  it  to  ratify.  Other  states 
know  that  the  approval  of  two  authorities  has  to  be 
gained  for  a diplomatic  instrument  before  it  can  be  con- 
sidered as  agreed  to,  and  they  take  their  measures  accord- 
ingly. The  Senate  of  the  United  States  has  frequently 
refused  to  ratify  treaties  made  by  the  executive  power.  In 
1885,  for  instance,  it  refused  its  assent  to  a treaty  with 
Nicaragua  for  a construction  of  a ship-canal  between  the 
Atlantic  and  the  Pacific,  and  in  1888  it  threw  out  a Fishery 
Treaty  which  had  been  negotiated  with  Great  Britain.  But 
when  the  treaty-making  power  and  the  ratifying  power  are 
vested  in  the  same  hands,  it  is  held  that  some  reason  should 
be  forthcoming  to  justify  a refusal  to  ratify.  If  the  nego- 
tiators have  exceeded  their  powers,  if  any  deceit  as  to  mat- 
ters of  fact  has  been  practised  upon  them,  or  if  circumstances 
have  entirely  changed  since  the  treaty  was  signed,  there  can 
be  no  doubt  that  a state  is  quite  within  its  rights  in  declin- 
ing to  give  the  last  formal  sanction  Avhich  calls  the  stipula- 
tions of  its  agents  into  operation.  But  modern  practice 
seems  to  go  further,  and  gives  support  to  the  theory  that 
the  time  between  signature  and  ratification  is  granted  to  the 
parties  for  the  purpose  of  thinking  the  matter  over,  and  that 
if  a state  changes  its  mind  in  the  interval  from  any  reason 

1 Holland,  European  Concert  in  the  Eastern  Question,  p.  244. 

2 Twiss,  Law  of  Nations , I.,  § 251. 


286 


RIGHTS  AND  OBLIGATIONS 


that  is  at  all  distinguishable  from  mere  caprice,  it  may  re- 
fuse to  complete  the  bargain  by  ratification.  Thus  the  King 
of  Holland  refused  in  1841  to  ratify  a commercial  treaty 
he  had  concluded  as  Grand  Duke  of  Luxemburg,  on  the 
ground  that  since  he  had  signed  it  he  had  become  convinced 
that  it  would  injure  the  trade  of  its  subjects,1  and  in  1884 
Great  Britain  dropped  an  agreement  she  had  concluded  in 
1883  with  Portugal  concerning  the  mouth  of  the  Congo,  the 
reasons  being  that  its  provisions  were  very  far  from  satis- 
fying the  traders  and  others  immediately  concerned,  and 
that  it  Avas  proposed  to  settle  the  question  along  with  many 
other  similar  questions  at  a great  International  Conference.2 


§ 153. 

Next  among  the  matters  of  international  concern  connected 
with  formal  agreements  between  states  we  may  mention 


The  rules  of  interpretation  to  be  applied  to  treaties. 

A vast  amount  of  misplaced  ingenuity  has  been  expended 
on  this  subject.  Yattel  devotes  a whole  chapter  to  it,  and 
. . ...  obtains  as  the  result  such  rules  as  “It  is  not 

of  treaties.  permitted  to  interpret  what  has  no  need  of  inter- 
pretation ’ ’ and  “We  ought  to  take  figurative  expressions 
in  a figurative  sense.”3  But  since  states  have  no  common 
superior  to  adjust  their  differences  and  declare  with  author- 
ity the  real  meaning  and  force  of  their  international  docu- 
ments, it  is  clear  that  no  rules  of  interpretation  can  be  laid 
down  which  are  binding  in  the  sense  that  the  rules  followed 
by  a court  of  law  in  construing  a will  or  a lease  are  binding 
on  the  parties  concerned.  “There  is  no  place  for  the  refine- 
ments of  the  courts  in  the  rough  jurisprudence  of  nations.”  4 


1 Twiss,  Law  of  Nations,  § 251. 

2 Speech  of  Mr.  Gladstone  in  House  of  Commons,  March  12,  1885;  see 
Hansard,  3d  Series,  Vol.  CCXCV.,  975. 

3 Droit  des  Gens,  II.,  xvii. 

4 Hall,  International  Law,  p.  840,  note 


CONNECTED  WITH  DIPLOMACY. 


287 


We  can  hardly  venture  to  go  beyond  the  statements  that 
ordinary  words  must  be  taken  in  an  ordinary  sense  and  tech- 
nical words  in  a technical  sense,  and  that  doubtful  sentences 
and  expressions  should  be  interpreted  by  the  context,  so  as 
to  make  the  treaty  homogeneous  and  not  self-contradictory. 
But  when  states  get  into  controversy  about  the  interpreta- 
tion of  a treaty,  they  often  make  a new  agreement,  clearing 
up  the  disputed  points  in  the  way  that  seems  most  convenient 
at  the  time,  which  is  not  always  the  way  pointed  out  by  strict 
rules  of  interpretation. 

§ 154. 

The  last  point  we  have  to  consider  in  this  connection  is  „ 

The  extent  to  which  treaties  are  binding. 

The  ancient  and  mediaeval  fashion  of  giving  pledges  and 
hostages  for  the  fulfilment  of  treaties  has  passed  away,  and 
states  now  rely  upon  their  own  power,  and  upon  The  obl.  ation 
considerations  of  self-interest  and  feelings  of  oftreaties- 
duty,  to  secure  the  observance  of  engagements  entered  into 
with  them.  In  the  eye  of  International  Law  treaties  are 
made  to  be  kept.  Their  obligation  is  perpetual,  unless  a 
time  is  limited  in  their  stipulations  or  they  provide  for  the 
performance  of  acts  which  are  done  once  for  all,  such  as  the 
payment  of  an  indemnity  or  the  cession  of  territory.  That 
they  were  extorted  by  force  is  no  good  plea  for  declining  to 
be  bound  by  them.  Most  treaties  of  peace  are  made  by  the 
vanquished  state  under  duress;  but  there  would  be  an  end 
of  all  stability  in  international  affairs  if  it  were  free  to  re- 
pudiate its  engagements  on  that  account  whenever  it  thought 
fit.  The  only  kind  of  duress  which  justifies  a breach  of 
treaty  is  the  coercion  of  a sovereign  or  plenipotentiary  to 
such  an  extent  as  to  induce  him  to  enter  into  arrangements 
which  he  would  never  have  made  but  for  fear  on  account  of 
his  personal  safety.  Such  was  the  renunciation  of  the  Span- 
ish crown  extorted  by  Napoleon  at  Bayonne  in  1807  from 


288 


RIGHTS  AND  OBLIGATIONS 


Charles  IV.  and  his  son  Ferdinand.1  The  people  of  Spain 
broke  no  faith  when  they  refused  to  he  bound  by  it  and 
rose  in  insurrection  against  Joseph  Bonaparte,  who  had 
been  placed  upon  the  throne. 

But  though  the  obligations  of  treaties,  with  the  exceptions 
just  mentioned,  are  perpetual  as  far  as  the  utterances  of 
International  Law  are  concerned,  it  is  clear  that  they  can- 
not remain  unchanged  forever.  No  one  now  proposes  to 
go  back  to  the  Treaties  of  Minister  or  of  Utrecht,  and  few 
would  consider  it  desirable  to  return  to  the  stipulations 
enacted  at  Vienna  after  the  downfall  of  the  first  Napoleon. 
As  circumstances  alter  the  engagements  made  to  suit  them 
go  out  of  date.  When,  and  under  what  conditions,  it  is 
justifiable  to  disregard  a treaty,  is  a question  of  morality 
rather  than  of  law.  Each  case  must  be  judged  on  its  own 
merits.  It  is  impossible  to  lay  down  a hard  and  fast  rule, 
such  as  was  embodied,  at  the  Conference  held  at  London  in 
1871  to  settle  the  Black  Sea  Question,  in  the  words,  “It  is 
an  essential  principle  of  the  Law  of  Nations  that  no  power 
can  liberate  itself  from  the  engagements  of  a treaty,  nor 
modify  the  stipulations  thereof,  unless  with  the  consent  of 
the  contracting  powers  by  means  of  an  amicable  arrange- 
ment.”2 This  doctrine  sounds  well;  but  a little  considera- 
tion will  show  that  it  is  as  untenable  as  the  lax  view  which 
would  allow  any  party  to  a treaty  to  violate  it  on  the  slight- 
est pretext.  If  it  were  invariably  followed,  a single  ob- 
structive power  would  have  the  right  to  prevent  beneficial 
changes  which  all  the  other  states  concerned  were  willing  to 
adopt.  It  would  have  stopped  the  unification  of  Italy  in 
1860  on  account  of  the  protests  of  Austria,  and  the  consoli- 
dation of  Germany  in  1866  and  1871  because  of  the  opposi- 
tion of  some  of  her  minor  states.  International  Law  certainly 
does  not  give  a right  of  veto  on  political  progress  to  any 
reactionary  member  of  the  family  of  nations  who  can  dis- 

1 Fyffe,  Modern  Europe,  I.,  367-370. 

2 British  State  Papers,  Protocols  of  London  Conference,  1871,  p.  7. 


CONNECTED  WITH  DIPLOMACY. 


289 


cover  in  its  archives  some  obsolete  treaty,  on  the  fulfilment 
of  whose  stipulations  it  insists  against  the  wishes  of  all  the 
other  signatory  powers.  In  truth  these  questions  transcend 
law.  They  are  outside  its  sphere  ; and  its  rules  do  not  apply 
to  them.  Moreover  it  must  be  remembered  that  sometimes 
provisions  are  inserted  in  a treaty  more  for  show  and  to  soothe 
wounded  susceptibilities,  than  with  any  serious  intention  of 
having  them  carried  into  effect.  Such  was  the  stipulation 
in  the  Treaty  of  Berlin  in  1878  that  Turkey  should  garrison 
the  Balkan  passes  with  her  troops,  who  should  have  for  that 
purpose  only  a right  to  pass  through  Roumelia.1  It  was 
well  known  that  the  people  of  that  province  would  not  allow 
the  Ottoman  soldiers  to  pass  and  repass  peaceably,  and  the 
Porte  was  not  expected  to  exercise,  and  never  did  exercise, 
the  right  given  to  it  on  paper.  A stipulation  of  the  great 
International  Treaty  of  Berlin  was  thus  ignored  from  the 
beginning,  and  the  consent  of  the  contracting  parties  was 
never  even  asked  ; yet  no  accusations  of  bad  faith  have  been 
bandied  about,  and  the  strictest  moralists  would  hardly  ven- 
ture to  say  that  the  provision  should  have  been  acted  upon 
at  the  risk  of  kindling  another  war.  Each  case  has  circum- 
stances that  are  peculiar  to  it,  and  we  must  judge  it  on  its 
own  merits,  bearing  in  mind  on  the  one  hand  that  good  faith 
is  a duty  incumbent  on  states  as  well  as  individuals,  and  on 
the  other  that  no  age  can  be  so  wise  and  good  as  to  make  its 
treaties  the  rules  for  all  succeeding  time. 


1 Holland,  European  Concert  in  the  Eastern  Question,  p.  289. 


Part  III. 


THE  LAW  OF  WAR. 

CHAPTER  I. 

THE  DEFINITION  OF  WAR  AND  OTHER  PRELIMINARY  POINTS. 

§ 155. 

War  may  be  defined  as  A contest  carried  on  by  public  force 
between  states , or  between  states  and  communities  having  with  re- 
The  nature  and  gard  to  the  contest  the  rights  of  states.  Some  of 
definition  of  war.  p[ie  earlier  authorities  regarded  war  as  a condi- 
tion. Grotius,  for  instance,  defines  it  as  Status  per  vim  certan- 
tium , qua  tales  sunt, 1 which  Whewell  translates  as  “ the  state 
of  those  contending  by  force,  as  such.”  But  we  speak  of 
states  as  being  belligerent,  and  thus  indicate  their  condition, 
while  we  reserve  the  word  “ War  ” for  the  series  of  hostile 
acts  which  take  place  during  belligerency.  War  is  a con- 
test, not  a condition  ; and  moreover  it  is  restricted  to  con- 
tests carried  on  under  state  authority  directly  or  indirectly 
given.  Private  war  has  long  ago  disappeared  from  civilized 
societies.  If  individuals  now  attempt  to  redress  their  real 
or  fancied  wrongs  by  the  might  of  their  own  hands,  they 
are  regarded  by  the  law  as  disturbers  of  the  public  peace, 


1 De  Jure  Belli  ac  Pacts,  I.,  I.,  II. 


DEFINITION  OF  WAR  AND  OTHER  PRELIMINARY  POINTS.  291 

and  their  act  is  an  offence  in  itself,  however  gross  may  have 
been  the  injury  which  brought  it  about.  It  sometimes  hap- 
pens that  a commander  at  a distance  from  his  own  country 
and  without  means  of  communicating  immediately  with  his 
Government  deems  such  a serious  emergency  to  have  arisen 
as  will  necessitate  hostile  acts  on  his  part  against  the  local 
rulers  and  their  subjects.  If  his  proceedings  are  adopted 
and  ratified  by  his  Government,  they  are  state  acts  from  the 
first,  and  constitute  a regular  war  : if  they  are  disavowed, 
they  are  acts  of  unauthorized  violence  for  which  reparation 
must  be  given.  A war  such  as  was  waged  in  the  autumn 
of  1893  by  the  armed  forces  of  the  British  South  African 
Company  against  Lobengula,  King  of  the  Matabele,  and  his 
tribe,  is  indirectly  a state  act,  inasmuch  as  it  is  carried  on 
by  a chartered  corporation  under  authority  granted  by  the 
state.  Whatever  may  be  thought  of  the  policy  of  allowing 
private  associations  to  exercise  many  of  the  powers  and  pre- 
rogatives of  sovereignty  in  their  dealings  with  barbarous 
races,  it  is  clear  that  the  international  responsibility  for  their 
wars  belongs  to  the  state  which  has  delegated  to  them  so 
many  of  its  functions.  Their  force  is  its  force  ; their  wars 
are  its  wars  ; and  their  political  arrangements  are  its  politi- 
cal arrangements.  All  war  is  now  public  war.  Even  the 
military  and  naval  operations  of  revolted  provinces  or  colo- 
nies have  a public  character  impressed  upon  them  by  the 
process  known  as  Recognition  of  Belligerency  ; 1 so  that 
the  dictum  of  Grotius  that  civil  war  is  public  on  the  part  of 
the  government  and  private  on  the  part  of  the  rebels  2 is  no 
longer  applicable.  The  other  distinctions  between  different 
kinds  of  war  are  either  unmeaning  or  obsolete.  A formal 
war  was  one  carried  on  by  public  authority  and  declared 
with  due  formality,  whereas  an  informal  war  wanted  both 
these  characteristics.  But  we  have  just  seen  that  all  modern 
wars  are  waged  by  the  authority  of  the  sovereign  power  in 

1 See  §§  162,  163. 

2 De  Jure  Belli  ac  Pads,  I.,  III.,  I. 


292 


THE  DEFINITION  OF  WAR 


the  state,  and  we  shall  soon  see  that  no  formal  declarations 
of  war  are  now  required.  In  a perfect  war  the  whole  state 
was  placed  in  the  legal  condition  of  belligerency,  and  in 
this  sense  of  the  term  all  wars  are  now  perfect.  An  imper- 
fect war  was  limited  as  to  persons,  places  and  things  ; and 
all  wars  are  now  limited  to  combatants  so  far  as  active  hostile 
operations  are  concerned,  and  must  of  necessity  be  limited 
as  to  places  and  things  since  no  power  can  cover  the  whole 
of  the  possible  area  of  hostilities  with  its  armed  forces. 
Again,  war  was  said  to  be  offensive  on  the  part  of  the 
aggressor  in  the  struggle,  and  defensive  on  the  part  of 
those  on  whom  the  quarrel  was  fastened  ; and  a distinction 
of  the  same  kind  was  signified  by  the  contrast  between  just  and 
unjust  wars,  when  it  was  not  meant  to  convey  the  ideas  set 
forth  by  the  terms  “formal”  and  “informal.”1  But  modern 
International  Law  knows  nothing  of  these  moral  questions. 
It  does  not  pronounce  upon  them  : it  simply  ignores  them. 
To  it  war,  whether  just  or  unjust,  right  or  wrong,  is  a fact 
which  alters  in  a great  variety  of  ways  the  relations  of  the 
parties  concerned.  It  must,  therefore,  be  defined  and  its 
legal  incidents  set  forth.  Law  will  tell  us  how  the  relation 
of  belligerency  is  created,  and  what  are  the  rights  and  obli- 
gations of  belligerents  towards  each  other  and  towards  neu- 
trals ; but  we  look  to  ethical  discussions  for  guidance  upon 
the  moral  questions  which  occupy  such  a large  space  in  the 
writings  of  the  early  publicists.  Grotius,  for  instance,  en- 
deavors to  classify  the  just  causes  of  war,  after  having  de- 
cided that  war  is  not  necessarily  wrong,  mainly  by  the  process 
of  confusing  it  with  capital  punishment.2  Such  questions 
as  these  are  worthy  of  the  most  careful  consideration  ; but 
they  are  as  much  out  of  place  in  a treatise  on  International 
Law  as  would  he  a discussion  on  the  ethics  of  marriage  in 
a book  upon  the  law  of  personal  status. 

1 Halleck,  International  Laic,  Cli.  XVI. 

2 Be  Jure  Belli  ac  Pacts,  I.,  II.,  and  II.,  I.,  XX. -XXVI. 


AND  OTHER  PRELIMINARY  POINTS. 


293 


§ 156. 

W ar  must  be  distinguished  from  certain  methods  of  apply- 
ing force  which  are  held  not  to  be  inconsistent  with  the 
continuance  of  peaceful  relations  between  the  Modes  of  puttino, 
powers  concerned,  though  the  distinction  is  statfby’uoience 
found  in  the  intent  of  the  parties  rather  than  to^mount°toheld 
in  the  character  of  the  acts  performed.  In  so  open  war' 
far  as  the  power  against  which  these  latter  are  directed  is 
concerned,  they  are  exactly  the  same  as  would  be  resorted 
to  in  the  case  of  warlike  operations.  But  the  parties  to 
them  do  not  choose  to  regard  themselves  as  belligerents,  and 
do  not  claim  to  subject  other  states  to  the  burdens  and  dis- 
abilities of  neutrals.  The  diplomatists  on  both  sides  con- 
tinue their  work,  non-combatants  are  not  obliged  to  suspend 
commercial  intercourse  at  places  outside  the  area  of  the  force- 
ful proceedings,  and  the  legal  concomitants  of  a state  of 
peace  continue  to  exist.  The  modes  of  putting  stress  upon 
an  offending  state  which  are  of  a forceful  and  violent  nature, 
though  they  are  said  to  fall  short  of  actual  war,  may  be 
classified  under  the  heads  of  Reprisals,  Embargo  and  Pacific 
Blockade. 


§ 157. 

We  will  first  deal  with 

Reprisals. 

The  term  is  used  in  a beAvildering  variety  of  senses. 
Sometimes  it  means  nothing  more  than  a resort  to  the  lex 
talionis  in  warfare.  A' commander  Avho  shoots 

.....  Reprisals. 

the  mayor  of  an  occupied  town  in  retaliation 
for  the  murder  of  his  sentinels  by  the  inhabitants  resorts  to 
an  act  of  reprisal  ; but  it  is  an  incident  of  warfare,  not  an 
attempt  to  bring  an  offending  state  to  terms  by  an  exercise 
of  force  which  does  not  amount  to  war.  Again,  we  some- 
times read  of  Negative  Reprisals  or  Retortion  ; but  these 


294 


THE  DEFINITION  OF  WAR 


are  carried  on  by  adopting  towards  a state  which  is  acting 
in  an  unfriendly,  though  peaceful,  manner  a similar  line  of 
conduct  to  that  complained  of  in  it.  They  take  place,  for 
instance,  when  differential  duties  are  levied  by  one  state 
upon  the  products  of  another  which  has  discriminated 
against  the  former  in  its  tariff  ; and  it  is  quite  clear  that 
they  have  no  connection  with  force  or  war.  The  older 
publicists  make  mention  of  yet  another  form  of  Reprisal. 
They  describe  as  Special  Reprisals  a method  frequently 
resorted  to  in  the  Middle  Ages,  and  sometimes  in  later 
periods,  for  the  indemnification  of  private  individuals  for 
injuries  and  losses  inflicted  by  subjects  of  other  nations. 
Letters  of  Marque  were  issued  by  the  sovereign  to  those  who 
had  been  wronged,  and  they  were  thereby  authorized  to  recoup 
themselves  by  capturing  vessels  and  cargoes  of  the  offending 
nationality.  AVith  the  rise  of  modern  notions  of  state  respon- 
sibility and  the  increase  of  the  power  of  governments  these 
Special  Reprisals  have  fallen  into  disuse.  The  wronged 
individual  would  now  be  told  by  the  rulers  of  his  country 
that  they  would  endeavor  to  obtain  redress  for  him  from  the 
rulers  of  the  country  to  which  the  offender  belonged.  A 
diplomatic  correspondence  would  ensue,  and,  if  the  complaint 
was  well  founded,  redress  would  in  all  probability  be  given. 
But  the  transaction  would  be  one  between  the  states  con- 
cerned, and  the  individuals  with  regard  to  whom  the  case 
arose  would  do  no  more  than  communicate  each  with  his 
own  Government.  The  only  kind  of  Reprisals  of  a forceful 
character  known  to  modern  International  Law  is  what  used 
to  be  called  by  way  of  distinction  General  Reprisals.  They 
take  place  when  a state  which  deems  itself  aggrieved  sends 
its  public  armed  forces  to  seize  and  destroy  property  belong- 
ing to  the  offending  state  or  its  subjects  in  the  territory 
of  the  latter  state,  in  its  waters  or  on  the  high  seas.  One  of 
the  most  recent  instances  is  afforded  by  the  hostile  acts  of 
France  against  China  in  1884  and  1885.  The  French  Gov- 
ernment felt  aggrieved  by  the  constant  presence  of  bands  of 


AND  OTHER  PRELIMINARY  POINTS. 


295 


Chinese  among  the  forces  of  Tonquin,  which  it  was  then 
engaged  in  subduing.  It  deemed  the  excuses  and  promises 
of  the  Chinese  authorities  to  be  delusive  ; but  it  did  not 
wish  to  take  the  extreme  measure  of  waging  regular  war 
against  China.  It,  therefore,  adopted  what  the  French 
Prime  Minister,  M.  Jules  Ferry,  described  as  a policy  of 
intelligent  destruction.  A French  fleet  bombarded  the 
arsenal  of  Foo-Chow  and  took  possession  of  certain  points 
on  the  Chinese  island  of  Formosa  ; but  negotiations  were 
going  on  all  the  while  with  China,  the  diplomatic  ministers 
were  not  withdrawn,  and  a state  of  war  was  not  held  to 
exist  between  the  two  countries.1  The  violence  resorted  to 
on  this  occasion  has  been  very  generally  deemed  extreme. 
The  usual  practice  is  to  seize  vessels,  but  not  to  attack 
places  or  devastate  territory. 


§ 158. 

We  have  next  to  describe 

Embargo , 

considered  as  a means  of  bringing  an  adversary  to  reason 
without  resorting  to  actual  war.  Here  too,  as  in  the  case  of 
Reprisals,  we  must  begin  by  drawing  distinc- 
tions. Embargo  pure  and  simple  is  nothing 
more  than  the  detention  of  ships  in  port;  and  it  may  be  put  in 
force  for  good  reason  by  a state  against  its  own  vessels,  as  was 
done  by  the  United  States  in  1807,  when  to  avoid  the  violent 
action  of  both  French  and  English  cruisers  neutral  American 
merchantmen  were  for  a time  prevented  from  leaving  Amer- 
ican ports  by  the  act  of  their  own  Government.2  A deten- 
tion of  this  kind  is  called  Pacific  Embargo,  and  it  has  no 
necessary  connection  with  any  attempt  to  obtain  redress  for 

1 Annual  Begister  for  1884,  pp.  280,  281,  369-376  ; Annual  Begister  for 
1885 , pp.  206-214,  330-335. 

2 Wharton,  International  Law  of  the  United  States,  § 320. 


296 


THE  DEFINITION  OF  WAR 


injuries  received.  When  merchant  vessels  of  the  offending 
state  are  detained  in  the  ports  of  the  state  which  deems  itself 
aggrieved,  we  have  an  instance  of  such  an  attempt,  and  it  is 
called  Hostile  Embargo.  Some  writers  regard  it  as  a kind 
of  Reprisal;  but  there  is  a distinction  between  the  two  in 
that  the  former  consists  of  seizures  in  the  waters  of  the 
offended  state,  and  the  latter  of  seizures  on  the  high  seas  and 
in  the  ports  of  the  state  which  gives  the  provocation.  The 
legal  effects  of  Hostile  Embargo  were  stated  by  Lord  Stowell 
in  a luminous  judgment  in  the  cases  of  the  Boedes  Lust} 
which  arose  in  1803.  After  the  rupture  of  the  Peace  of 
Amiens,  Great  Britain  had  good  reason  to  believe  that  Hol- 
land Avas  only  waiting  for  an  opportunity  in  order  to  join 
France  against  her.  An  Embargo  was,  therefore,  laid  upon 
all  Dutch  vessels  in  British  ports  with  the  object  of  inducing 
Holland  to  give  up  her  alliance  with  Napoleon.  Its  effect 
was  just  the  contrary.  War  broke  out,  and  the  question  of 
the  legal  effect  of  the  original  seizure  of  the  Dutch  vessels 
came  before  a Prize  Court.  Lord  Stowell  laid  down  that 
Hostile  Embargo  Avas  at  first  equivocal  in  its  legal  aspects 
and  its  real  character  was  determined  by  the  events  that  fol- 
loAved  it.  If  Avar  broke  out,  its  commencement  had  a retro- 
active effect  and  made  the  seizure  belligerent  capture  from  the 
first.  If  satisfaction  was  given  and  friendship  restored  be- 
tAveen  the  tAVO  states,  the  original  seizure  amounted  to  nothing- 
more  than  civil  detention  and  Avorked  no  disturbance  of  pro- 
prietary rights.  Up  to  and  during  the  last  century  Hostile 
Embargo  Avas  often  resorted  to  in  contemplation  of  hostilities. 
If  a state  found  in  its  ports  a considerable  number  of  ves- 
sels belonging  to  a probable  adversary,  it  Avas  apt  to  seize 
the  opportunity  and  lay  hands  upon  them  before  the  actual 
outbreak  of  Avar.  The  growth  of  commercial  interests,  and 
possibly  a quickened  sense  of  justice,  have  caused  the  prac- 
tice to  be  discontinued;  and  in  modern  times  the  merchant 
vessels  of  the  enemy  found  in  port  at  the  commencement  of 
1 Robinson,  Admiralty  Reports , V.,  244-251. 


AND  OTHER  PRELIMINARY  POINTS. 


297 


hostilities  are  generally  allowed  a fixed  period  in  which  to 
depart  without  molestation. 


§ 159. 

The  comparatively  modern  practice  termed 
Pacific  Blockade 

must  now  be  considered.  The  first  instance  of  it  occurred 
in  1827,  when  Great  Britain,  France  and  Russia  blockaded 
the  coasts  of  Greece  in  order  to  induce  Turkey, 

‘ Pacific  Blockade. 

with  whom  they  remained  at  peace,  to  accept 
their  mediation  in  its  war  with  its  revolted  Greek  subjects. 
From  that  time  onwards  Pacific  Blockades  have  been  resorted 
to  at  intervals,  as  a means  of  putting  pressure  to  bear  upon 
states  with  whom  it  was  not  deemed  necessary  or  desirable 
to  resort  to  regular  hostilities.  Publicists  have  been  greatly 
divided  as  to  the  legality  of  the  practice.  The  true  test  of 
its  consonance  with  accepted  principles  is  to  be  found  in  the 
nature  of  the  treatment  accorded  to  vessels  of  third  powers 
by  the  blockaders.  If  the  commerce  of  states  unconnected 
with  the  quarrel  is  forcibly  stopped,  an  illegal  act  is  done, 
since  no  power  has  the  right  to  prevent  the  ships  of  other 
powers  from  trading  in  time  of  peace  with  ports  opened  to 
them  by  the  local  sovereigns.  But  if  no  trade  other  than 
that  of  the  blockading  and  the  blockaded  powers  is  molested, 
it  is  impossible  to  say  that  any  international  offence  is  com- 
mitted. The  parties  immediately  concerned  must  be  allowed 
to  settle  their  disagreement  in  their  own  way,  as  long  as  they 
do  not  interfere  with  the  rights  of  those  who  have  no  con- 
cern with  the  matter  in  dispute.  These  principles  have  been 
fully  established  by  the  last  two  cases  that  have  arisen.  In 
1884  the  French  established  what  they  regarded  as  a Pacific 
Blockade  of  part  of  the  coast  of  Formosa,  as  an  incident  of 
their  operations  for  reducing  China  to  terms  without  a resort 
to  open  war  ; but,  inasmuch  as  they  claimed  a right  to  cap- 
ture vessels  of  third  powers,  Great  Britain  protested.  The 


298 


THE  DEFINITION  OF  WAR 


French  Government  declared  that  its  public  armed  ships 
would  not  resort  to  search  and  capture  on  the  high  seas,  but 
would  seize  any  merchantman,  whether  of  Chinese  or  other 
nationality,  which  attempted  to  enter  the  blockaded  ports ; 
and  Earl  Granville,  who  was  then  the  English  Secretary  for 
Foreign  Affairs,  replied  that  in  that  case  Great  Britain  was 
obliged  to  hold  that  a state  of  war  existed  between  France 
and  China,  and  must  put  in  force  her  neutrality  regulations 
in  the  ports  of  Singapore  and  Hong-Kong.  In  consequence 
of  this  France  claimed  and  exercised  full  belligerent  rights 
against  neutrals  ; hut  the  matter  was  settled  almost  imme- 
diately by  the  restoration  of  normal  pacific  relations  with 
China.1  In  1886  the  Great  Powers,  with  the  exception  of 
France,  established  a Pacific  Blockade  of  the  coasts  of  Greece, 
in  order  to  prevent  the  Greeks  from  making  war  upon  Turkey 
and  thus  precipitating  a great  European  struggle.  The  allied 
fleets  were  instructed  to  detain  all  vessels  under  the  Greek 
flag  attempting  to  run  the  blockade,  but  it  was  added  that 
even  Greek  ships  were  not  to  be  seized  when  any  part  of 
their  cargo  belonged  to  subjects  of  a state  other  than  Greece 
or  the  blockading  powers,  should  such  cargo  have  been 
shipped  before  notification  of  the  blockade,  or  after  notifica- 
tion but  under  a charter  made  before  notification.2  The 
blockade  was  raised  in  a few  weeks  in  view  of  the  pacific 
assurances  of  a new  Ministry  and  the  commencement  of  Greek 
disarmament ; and  while  it  lasted  no  protests  were  raised 
by  states  unconnected  with  it.  In  this  respect  it  contrasts 
favorably  with  the  French  Blockade  of  Formosa  two  years 
before.  The  history  of  the  two  cases  points  unmistakably 
to  the  conclusion  that  Pacific  Blockade  is  lawful,  provided  it 
is  enforced  against  none  but  vessels  of  the  power  which  is  to 
be  coerced  by  it ; and  on  this  condition  it  was  approved  in 
1887  by  the  Institute  of  International  Law.3 

1 British  State  Papers,  France , No.  1 (1885),  pp.  1-13  ; French  State 
Papers,  Affaires  de  Chine  (1885),  pp.  1-15. 

2 British  State  Papers,  Greece,  No.  4 (1886),  p.  14. 

8 Annuaire  de  VInstitut  de  Droit  International,  1887-1888,  pp.  300,  301. 
Note,  however,  that  the  condition  was  not  observed  in  the  so-called  Pacific 
Blockade  of  Crete  by  the  ships  of  the  Great  Powers  in  189 f. 


AND  OTHER  PRELIMINARY  POINTS.  299 

§ 160. 

The  power  against  which  Reprisal,  Embargo  or  Pacific 
Blockade  is  resorted  to  can,  if  it  pleases,  resort  to  war  in 
return;  and  it  is  certain  that  any  powerful  Theva)ueand 
and  high-spirited  nation  would  do  so.  Self-  th^Hnomaious 
respect  would  forbid  it  to  give  way  under  vio-  measures- 
lent  and  coercive  pressure,  thought  it  might  have  been 
willing  to  settle  the  question  at  issue  after  negotiation  by 
some  acceptable  concession.  But  in  cases  where  a strong 
state  or  group  of  states  finds  itself  obliged  to  undertake 
what  are  practically  measures  of  police  against  weak  or  bar- 
barous powers,  one  or  other  of  the  means  above  described 
may  be  a useful  alternative  to  war.  They  are  less  destruc- 
tive and  more  limited  in  their  operation.  It  is  true  that  they 
may  be  used  to  inflict  injury  on  small  states  and  extort  from 
them  a compliance  with  unreasonable  demands.  But  war 
can  be  equally  unjust,  and  would  certainly  cause  more  suf- 
fering. There  seems  no  reason  to  endeavor  to  banish  from 
International  Law  its  sanction  of  these  anomalous  opera- 
tions, which  are  neither  wholly  warlike  nor  wholly  peace- 
ful. What  should  be  done  is  to  create  a strong  public 
opinion  against  their  use  on  slight  provocation,  or  for  a 
manifestly  unjust  cause. 

W § 161. 

Writers  on  International  Law  are  divided  as  to  the  neces- 
sity of  Declarations  of  War.  Among  the  early  publicists 
there  was  a great  preponderance  of  opinion  in  ^ , 

. . x Declarations  of 

favor  of  requiring  them,  and  some  went  so  far  war  are  not 

1 ° 7 necessary. 

as  to  say  that  the  enemy  should  not  be  attacked 
till  some  time  after  a Declaration  had  been  issued.  Modern 
writers  are  inclined  to  hold  that  formal  Declarations  of  War 
are  not  needful,  but  a few  of  them  still  uphold  the  older 
doctrine.1  If  we  turn  to  practice  we  shall  find  that  in  the 
1 E.g.  Hautefeuille,  Droits  des  Nations  Neutres,  I.,  106. 


300 


THE  DEFINITION  OF  WAK 


Middle  Ages  heralds  were  generally  sent  to  give  the  enemy 
formal  warning  of  the  approach  of  hostilities.  It  was  part 
of  the  character  of  a true  knight  not  to  attack  his  opponent 
without  notice,  though  sometimes  the  notice  itself  was  turned 
into  an  insult,  as  when  Charles  V.  of  France  declared  war 
in  1369  against  Edward  III.  of  England  by  a letter,  the 
bearer  of  which  was  only  a common  servant.1  The  practice 
decayed  with  the  decay  of  feudal  ideas  ; but  heralds  were 
occasionally  used  as  messengers  of  war  long  after  chivalry 
was  forgotten,  the  date  of  the  last  instance  being  1657, 
when  Sweden  sent  a herald  to  Copenhagen  to  declare  war 
against  Denmark.  Declarations  handed  in  by  diplomatic 
agents  took  the  place  of  formal  notices  and  challenges  sent 
by  heralds,  but  the  use  of  them  was  by  no  means  universal. 
In  1588  Philip  II.  of  Spain  sent  the  Armada  against  England 
without  any  Declaration  of  War,  and  Gustavus  Adolphus 
did  not  issue  one  when  he  attacked  the  German  Empire  in 
1630.  Moreover  Declarations  were  frequently  issued  after 
the  war  had  gone  on  for  some  time,  as  was  the  case  in  1665 
when  the  English  declared  war  against  the  Dutch,  though 
all  through  1664  the  two  nations  had  been  fighting  in  Africa 
and  the  West  Indies  and  along  the  coast  of  North  America. 
Delay  in  the  issue  of  the  formal  Declaration  often  happened 
when  the  war  broke  out  in  distant  dependencies,  or  when 
one  of  the  parties  commenced  as  an  accessory,  by  giving 
limited  assistance  to  a friend,  and  afterwards  became  a prin- 
cipal. In  such  cases  as  these  the  treaty  of  peace  some- 
times stipulated  that  all  prizes  made  before  the  Declaration 
of  War  should  he  restored.  The  nearer  we  approach  to 
modern  times  the  rarer  do  formal  Declarations  become. 
There  have  been  only  eleven  of  them  between  civilized 
states  since  1700,  whereas  the  present  century  has  seen 
over  sixty  wars  or  acts  of  reprisal  begun  without  formal 
notice  to  the  power  attacked.2  But  the  last  two  great 

1 Ward,  History  of  the  Law  of  Nations , II.,  208. 

2 Maurice,  Hostilities  without  Declaration  of  War. 


AND  OTHER  PRELIMINARY  POINTS. 


301 


European  wars  witnessed  a return  to  the  older  practice. 
In  1870  a formal  Declaration  of  War  from  the  French 
Charg6  cl’ Affaires  at  Berlin  preceded  the  outbreak  of  hos- 
tilities and  partook  of  the  nature  of  a warning  to  Prussia  ; 1 
and  in  1877  a despatch  declaring  war  was  handed  to  the 
Turkish  representative  at  St.  Petersburg.  In  the  latter 
half  of  the  last  century  it  became  the  custom  for  a belliger- 
ent state  to  publish  a Manifesto  in  its  own  territory  at  the 
outbreak  of  war.  Copies  of  it  were  sent  to  neutral  sover- 
eigns, and  it  was  regarded  as  the  official  justification  of  the 
war.  But  though  such  a document  has  often  been  issued 
when  no  Declaration  was  made,  there  have  been  plenty  of 
instances  where  war  was  commenced  without  official  warning 
of  any  kind.  In  1812  the  United  States  began  war  with 
England  by  seizing  all  British  vessels  in  their  harbors  and 
invading  Canada  ; and  in  1854  the  British  fleet  entered  the 
Black  Sea  with  orders  to  compel  the  Russian  squadron  to 
return  to  Sebastopol,  before  the  ambassadors  had  been  with- 
drawn on  either  side.2 

It  is  clear  from  these  facts  that  no  Declaration  or  Mani- 
festo of  any  kind  is  necessary  in  order  to  legalize  a war  ; 
nor  does  morality  demand  that  the  publication  of  some 
formal  document  shall  be  made  obligatory.  Unless  the 
attacking  state  acts  with  the  grossest  perfidy  the  state 
attacked  must  always  be  warned.  Some  demands  must 
have  been  made  upon  it,  some  reason  for  hostility  indicated. 
It  is  very  seldom  that  a ruler  behaves  as  did  Frederick  the 
Great  in  1740,  when  his  troops  crossed  the  border  into  the 
province  of  Silesia  two  days  before  his  ambassador  arrived 
at  Vienna  to  demand  its  surrender  to  Prussia.3  Generally 
there  is  a period  of  negotiation  followed  by  an  ultimatum , 
that  is  a demand  the  refusal  of  which  will  be  followed  by 
war.  A careful  state  can  hardly  be  taken  by  surprise, 
especially  as  the  ease  of  communication  in  modern  times 

1 Maurice,  Hostilities  without  Declaration  of  War,  p.  76. 

2 Ibid.,  pp.  44,  45,  66.  a Ibid  ^ pp.  16>  17. 


302 


THE  DEFINITION  OF  WAR 


renders  the  concealment  of  any  unusual  concentration  of 
forces  almost  an  impossibility.  Moreover  the  legal  effects 
of  war  can  always  be  dated  from  the  first  act  of  hostility, 
and  in  fact  are  so  dated  except  in  the  few  cases  where  the 
struggle  is  inaugurated  by  a formal  declaration. 


§ 162. 

Every  independent  state  decides  for  itself  whether  it  shall 
make  war  or  remain  at  peace.  If  it  resorts  to  hostilities  it 
The  meaning  obtains  as  a matter  of  course  all  the  rights  of 

Eecognition°of  a belligerent.  Other  states  have  no  power  to 
Belligerency.  give  Qr  ^ withhold  them.  But  the  case  is  very 
different  with  regard  to  those  communities  which  are  not 
already  states  in  the  eye  of  International  Law,  though  they 
are  striving  to  become  independent,  and  to  have  their  inde- 
pendence recognized  by  other  powers.1  Technically  they 
form  portions  of  old-established  states.  Practically  each  is 
in  revolt  against  the  state  organization  to  which  it  belongs 
in  law,  and  is  endeavoring  to  set  up  a separate  state  organi- 
zation for  itself  or  to  gain  control  of  the  existing  organiza- 
tion. By  the  Municipal  Law  of  the  country  of  which  the 
community  is  still  legally  a part  its  members  are  traitors 
and  liable  to  punishment  as  such.  Yet  they  are  carrying 
on  open  war  under  the  orders  of  authorities  analogous  to 
those  of  recognized  states.  How  then  are  they  to  be 
treated?  International  Law  gives  no  answer  to  this  ques- 
tion as  far  as  the  government  against  which  they  are  in 
revolt  is  concerned.  Questions  between  it  and  its  rebels  are 
domestic  questions  to  he  resolved  by  internal  authority. 
In  modern  times  when  civil  strife  reaches  the  dimensions  of 
a war  the  parent  state  invariably  treats  the  insurgents  as 
belligerents,  partly  from  motives  of  humanity  and  partly 
because  it  does  not  care  to  expose  its  own  forces  to  military 
reprisals.  An  instance  of  this  on  a large  scale  is  afforded 

1 See  § 59. 


AND  OTHER  PRELIMINARY  POINTS. 


303 


by  the  events  of  the  American  Civil  War.  The  Supreme 
Court  decided  in  the  case  of  the  Amy  Warwick  1 that  the 
Confederates  were  at  the  same  time  belligerents  and  traitors, 
and  subject  to  the  liabilities  of  both.  In  practice,  however, 
they  were  treated  as  belligerents  throughout  the  struggle. 
But  if  third  parties  are  affected  by  the  war,  International 
Law  steps  in  and  gives  them  rules  by  which  to  govern  their 
conduct  towards  the  combatants.  It  lays  down  that  they 
may  under  certain  circumstances  grant  to  the  side  in  arms 
against  the  parent  state  all  the  rights  of  lawful  belligerents. 
The  notice  of  their  intention  to  do  this  is  called  Recogni- 
tion of  Belligerency.  It  must  be  publicly  given  either  in 
words,  or  by  the  performance  of  acts  peculiar  to  the  relation 
between  a neutral  and  a belligerent  community.  It  does 
not  confer  upon  the  community  recognized  all  the  rights 
of  an  independent  state  ; but  it  grants  to  its  government 
and  subjects  the  rights  and  imposes  upon  them  the  obliga- 
tions of  an  independent  state  in  all  matters  relating  to  the 
war.  It  follows  from  this  that  the  powers  which  give  such 
recognition  are  bound  to  submit  to  lawful  captures  of  their 
merchantmen  made  by  the  cruisers  of  the  community  recog- 
nized or  by  those  of  the  mother  country.  They  must  also 
respect  effective  blockades  carried  on  by  either  side,  and 
treat  the  officers  and  soldiers  of  the  rebels  as  lawful  com- 
batants, no  less  than  the  officers  and  soldiers  of  the  estab- 
lished government. 

§ 163. 

Since  Recognition  of  Belligerency  has  such  important 
legal  effects,  it  is  necessary  to  discuss  the  circumstances 

under  which  it  may  be  given  by  third  powers  The  circumstances 

• i i i pp  . . . . . rj-,  under  which  Rec- 

without  onence  to  the  parent  state.  Iwo  con-  ognition  of  Beiiig- 

. . , , erency  may  be 

ditions  are  necessary.  I he  struggle  must  have  lawfully  given, 
attained  the  dimensions  of  a war,  as  wars  are  understood  by 
civilized  states,  and  the  interests  of  the  power  which  recog- 
1 Black,  Reports  of  the  U.  S.  Supreme  Court,  II.,  635. 


304 


THE  DEFINITION  OF  WAR 


nizes  must  be  affected  by  it.  The  first  condition  is  satisfied 
when  the  revolted  community  is  seated  upon  a definite  terri- 
tory, over  which  an  organized  government  exercises  control 
except  in  so  far  as  parts  of  it  may  be  in  the  military  occupa- 
tion, of  the  enemy,  in  which  forces  are  levied  and  organized, 
and  from  which  they  are  sent  into  the  field  to  combat  accord- 
ing to  the  rules  of  civilized  warfare.  The  second  condition 
is  satisfied  when  there  are  so  many  points  of  contact  between 
the  subjects  of  the  recognizing  state  and  the  warlike  opera- 
tions, that  it  is  necessary  for  it  to  determine  how  it  will  treat 
the  parties  to  the  struggle.  When  an  insurrection  is  con- 
fined to  a district  in  the  interior  of  a country,  other  states 
would  be  acting  in  an  unfriendly  manner  if  they  recognized 
the  belligerency  of  the  insurgents,  because  by  the  nature  of 
the  case  the  incidents  of  the  conflict  could  not  directly 
affect  their  subjects.  But  if  a frontier  province  rebelled,  it 
would  be  difficult  for  the  neighboring  power  or  powers  not 
to  determine  whether  or  no  the  rebellion  amounted  to  a war; 
and  should  the  struggle  be  maritime,  states  interested  in 
sea-borne  commerce  could  hardly  refrain  from  recognition, 
if  the  area  of  hostilities  was  wide  and  the  interests  at  stake 
great  and  various.  The  status  of  cruisers,  the  legality  of 
blockades,  and  the  validity  of  captures  must  be  determined. 
What  is  lawful  treatment  of  neutral  merchantmen,  if  there  is 
a war,  is  unauthorized  and  illegal  violence,  if  there  is  not  ; 
and  inasmuch  as  Recognition  of  Belligerency  relieves  the 
parent  state  from  responsibility  for  the  acts  of  the  insurgent 
cruisers,  and  allows  it  to  use  the  ordinary  measures  of  naval 
warfare  towards  the  vessels  of  the  recognizing  power,  it  is 
almost  as  much  benefited  by  the  act  as  are  the  people  in 
revolt  against  it.  All  these  points  were  thoroughly  dis- 
cussed in  the  controversy  which  arose  between  Great  Britain 
and  the  United  States  with  regard  to  the  recognition  by  the 
former  of  the  belligerency  of  the  Southern  Confederacy  in 
the  spring  of  1861  ; and  it  is  generally  admitted  now  that 
the  conduct  of  the  British  Government  was  perfectly  lawful 


AND  OTHER  PRELIMINARY  TOINTS. 


305 


and  the  recognition  neither  uncalled  for  nor  premature, 
seeing  that  great  commercial  interests  were  involved  and 
President  Lincoln  had  proclaimed  a blockade  of  the  Southern 
ports  three  weeks  before  the  Queen’s  proclamation  was 
issued.1 

§ 164. 

Recent  events  in  some  of  the  South  American  Republics 
have  come  very  near  to  raising  the  question  whether  a re- 
volted fleet  can  receive  Recognition  of  Bellig- 

. ° . . The  question 

erency,  if  the  party  m whose  interests  it  is  whether  Recogm- 

J J tion  of  Belliger- 

acting  has  gained  possession  of  no  place  or  ency  can  be  given 

0 A # b A to  a fleet  acting 

province  to  be  the  land  basis  of  its  operations.  >vithout  a land 
When  the  Chilian  congressional  party  re- 
volted against  President  Balmaceda  in  1891,  it  had  at  first 
only  the  fleet  on  its  side  ; but  in  a very  short  time  districts 
and  land  forces  joined  the  movement,  which  was  then  recog- 
nized by  neutral  powers  and  succeeded  in  gaining  control  of 
the  government  after  a severe  struggle.  In  the  case  of  the 
Brazilian  insurrection  in  1893,  the  fleet  under  Admirals  de 
Mello  and  da  Gama  was  the  chief  agent  of  the  revolt ; but 
it  seems  to  be  an  undoubted  fact  that  certain  provinces  or 
parts  of  provinces  rose  against  the  established  government, 
and  it  is  claimed  that  the  insurrectionary  movement  origi- 
nated on  land.  Recognition  of  Belligerency  was  not  accorded 
to  the  insurgents.  Whether  it  could  ever  be  lawfully  given 
in  the  absence  of  any  land  basis  for  the  operations  of  a revolt 
is  a question  which  third  states  have  not  been  obliged  to 
solve,  though  circumstances  have  so  nearly  presented  it  to 
them  that  a good  deal  of  attention  has  been  directed  towards 
it.  On  the  one  side  it  may  be  argued  that  all  the  activities 
of  a state  or  quasi-state  are  so  intimately  connected  with  the 
notion  of  territorial  sovereignty,  that  it  would  be  impossible 
to  give  even  the  limited  rights  of  a belligerent  to  a commu- 
nity which  had  political  control  over  no  portion  of  the  earth’s 
1 Wharton,  International  Law  of  the  United  States,  §69. 


306 


THE  DEFINITION  OF  WAR 


surface.  On  the  other  side  it  may  be  said  that  the  warlike 
operations  of  an  insurgent  fleet  would  so  affect  the  interests 
of  neutral  commerce,  that  maritime  powers  would  be  obliged 
to  regard  them  as  lawful  acts  of  warfare,  unless  they  were 
prepared  to  take  the  extreme  step  of  treating  the  revolted 
vessels  as  pirates,  or  the  less  extreme  but  still  high-handed 
course  of  restraining  the  insurgents  from  performing  certain 
acts  affecting  neutral  interests.  This  was  done  in  1893  and 
1894,  when  the  revolted  squadron  in  the  harbor  of  Rio  was 
prevented  by  the  war  vessels  of  the  United  States,  Great 
Britain  and  other  powers  from  enforcing  a blockade  of  the  port 
against  their  respective  merchantmen.  If  the  case  should 
actually  arise,  events,  and  not  legal  reasoning,  will  probably 
settle  it,  as  the  Brazilian  difficulty  has  been  settled,  by  the  col- 
lapse of  the  insurrectionary  movement,  and  the  surrender  of 
most  of  the  insurgent  ships  on  March  13, 1894.  A fleet  with- 
out a port  or  land  basis  of  any  kind  cannot  continue  hostilities 
for  long.  Unless  some  portion  of  the  state’s  territory  joins 
it,  the  operations  it  carries  on  will  soon  come  to  an  end,  and 
third  powers  can  afford  to  await  the  inevitable  conclusion.1 

§ 165. 

The  outbreak  of  the  war  brings  about  an  immediate  and 
important  change  in  the  legal  relations  of  the  subjects  of  the 
belligerent  states.  The  public  armed  forces  on 
legal  effects  of  the  each  side  are  at  once  endowed  with  the  right 
to  carry  on  active  hostilities  according  to  the 
ordinary  rules  of  warfare  ; and  private  individuals  come 
under  an  obligation  to  refrain  from  holding  pacific  inter- 
course with  the  enemy.  It  is  treasonable  for  them  to  give 
him  intelligence  about  the  plans  and  operations  of  their  own 
side.  They  may  not  buy  public  funds  and  securities  created 
by  his  government  during  the  war.  As  soon  as  war  begins 
existing  commercial  partnerships  between  them  and  enemy 
subjects  are  ipso  facto  dissolved,  and  no  new  ones  may  be 

1 For  a full  discussion  of  this  question  see  Lawrence’s  “Recognition  of 
Belligerency  considered  in  Reference  to  Naval  Warfare,”  in  the  Journal 
of  the  Royal  United  Service  Institution  for  January,  1897. 


AND  OTHER  PRELIMINARY  POINTS. 


307 


entered  into  till  peace  is  restored.  No  debts  contracted  with 
enemy  subjects  before  the  war  can  be  recovered  during  its 
continuance,  nor  can  contracts  entered  into  but  not  per- 
formed be  enforced  ; but  as  soon  as  it  is  over  the  right  to 
obtain  what  is  due  by  legal  process  revives.  No  insurance 
of  enemy  property  can  be  effected  or  accepted,  and  no  bills 
of  exchange  drawn  on  an  enemy  subject.  In  short  no  busi- 
ness transactions  can  be  carried  on,  pending  hostilities.  To 
the  extent,  then,  of  a suspension  of  all  ordinary  peaceful 
intercourse  the  subjects  of  enemy  states  are  enemies.  This 
doctrine  is  denied  by  some  continental  publicists,  but  with 
little  reason.  Non-combatants  are  exempt  from  any  of  the 
severities  of  warfare,  yet  they  are  not  by  any  means  free  to 
act  as  if  no  war  existed. 

The  rules  we  have  laid  down  are  those  of  the  Common 
Law  of  nations,  which,  however,  allows  exceptions  to  some 
of  them  in  the  case  of  what  are  called  contracts  of  necessity. 
Ransom  bills  may  be  given  by  captains  of  captured  mer- 
chantmen to  their  captors,  if  the  law  of  their  own  country 
allows  it ; 1 and  bills  of  exchange  may  be  drawn  by  a pris- 
oner in  the  enemy’s  country  to  obtain  means  of  subsistence. 
Another  and  wider  class  of  exceptions  is  due  to  the  policy  of 
the  belligerents,  who  sometimes  relax  the  strict  rules  of  non- 
intercourse in  favor  of  special  individuals,  by  granting  them 
licenses  to  trade  with  the  enemy  at  a specified  place  in  speci- 
fied articles  and  to  a specified  extent.  A belligerent  may 
give  licenses  to  neutrals  as  well  as  to  his  own  subjects. 
Sometimes  trade  with  the  enemy  is  allowed  on  a larger  scale 
by  a wide  and  general  permission,  addressed  not  to  particu- 
lar individuals  but  to  all  whom  it  may  concern.  Thus  at 
the  beginning  of  the  Crimean  War  in  1854  trade  with  non- 
blockaded  Russian  ports  was  allowed  to  British  subjects, 
provided  that  it  was  carried  on  in  neutral  vessels  and  did 
not  include  articles  that  were  contraband  of  war.  The 
French  Government  gave  a similar  permission  to  its  subjects, 

i See  § 208. 


308 


THE  DEFINITION  OF  WAR 


and  Russia  allowed  English  or  French  goods,  the  property 
of  English  or  French  citizens,  to  be  imported  into  her 
dominions  in  neutral  vessels.1  It  is  by  no  means  impossible 
that  commercial  interests  will  secure  similar  relaxations  of 
the  strict  rules  of  warfare  in  future  struggles  between  great 
trading  nations. 

§ 166. 

We  are  faced  by  a number  of  difficult  and  complicated 
questions  when  we  come  to  consider  the  effect  of  war.  upon 
The  effect  of  war  treaties  to  which  the  belligerents  are  parties. 

upon  treaties  to  , . .....  ... 

which  the beiiiger-  the  only  way  in  which  it  is  possible  to  deal 

cnts  and  powers  . . 

other  than  the  bei-  with  them  satisfactorily  is  to  adopt  the  method 

ligerents  are 

parties.  of  analysis.  We  will  begin  by  separating 

treaties  to  which  other  powers  beside  the  belligerents  are 
parties  from  treaties  to  which  the  belligerents  only  are  par- 
ties. The  former  class  will  at  once  divide  into  Great  Inter- 
national Treaties  and  Ordinary  Treaties.  The  former  either 
make  epochs  in  the  development  of  the  state  system  and 
territorial  distribution  of  Europe,  or  take  a wider  range 
and  deal  with  questions  which  affect  the  condition  of  a large 
part  of  the  human  race,  while  the  latter  deal  with  such  mat- 
ters as  commercial  and  postal  intercourse  and  the  every-day 
business  of  the  society  of  nations. 

In  estimating  the  effect  of  war  upon  Great  International 
Treaties  Ave  must  distinguish  three  cases.  The  first  arises 
when  the  cause  of  the  Avar  is  quite  unconnected  with  the 
treaty.  Thus  in  1866  Prussia  and  Austria,  two  signatory 
poAvers  of  the  great  Treaty  of  Paris  of  1856  Avhich  for  a time 
settled  the  Eastern  Question,  Avere  the  chief  belligerents  in 
a conflict  which  arose  out  of  German  affairs  and  had  no  con- 
nection Avith  the  Turkish  Empire  and  its  dependencies.  The 
Treaty  of  Paris  was  entirely  untouched  by  that  war,  and 
the  rights  and  obligations  of  Austria  and  Prussia  under  it 
remained  Avhat  they  Avere  before,  hinder  such  circumstances 
1 Halleck,  International  Law  (Baker’s  ed.),  II.,  156,  note. 


AND  OTHER  PRELIMINARY  POINTS. 


309 


a Great  International  Treaty  is  unaffected  by  the  war.  The 
next  case  occurs  when  the  war  does  not  arise  out  of  the 
treaty,  but  operates  to  hinder  the  performance  of  some  of 
its  stipulations  by  the  belligerents.  France,  for  instance, 
when  in  1870  she  was  reeling  under  the  blows  of  Germany, 
would  not  have  been  able  to  make  good  the  guarantee  of 
the  independence  and  integrity  of  the  Ottoman  Empire  into 
which  she  had  entered  with  England  and  Austria  in  1856. 
In  such  a condition  of  affairs  the  obligations  it  is  impossible 
to  fulfil  must  be  held  to  be  suspended  for  a time  and  to 
revive  again  when  the  power  in  question  is  able  to  undertake 
them.  The  remaining  provisions  of  the  treaty,  which  re- 
quire merely  passive  acquiescence  and  not  active  support, 
continue  to  bind  the  crippled  state,  and  the  whole  treaty 
remains  binding  on  the  other  signatory  powers.  The  third 
case  occurs  when  the  war  arises  out  of  the  treaty.  This 
happened  in  1877,  when  Russia  and  Turkey,  two  of  the 
parties  to  the  Treaty  of  Paris  of  1856,  went  to  war  upon 
the  Eastern  Question.  It  is  very  difficult  to  say  what  are 
the  legal  effects  of  such  action.  The  chief  factor  in  deter- 
mining them  must  be  the  will  of  the  other  signatory  powers. 
In  1877-1878  they  remained  neutral  during  the  war,  but  at  its 
close  put  in  a successful  claim  to  be  consulted  in  drawing  up 
the  conditions  of  peace,  on  the  ground  that,  having  allowed 
the  state  of  affairs  established  in  1856  to  be  upset  by  the 
war,  they  were  entitled  to  a voice  in  shaping  the  new  arrange- 
ments which  were  to  take  its  place.  If  they  had  chosen 
instead  to  adopt  the  course  of  insisting  upon  the  Treaty  of 
Paris  and  making  war  against  any  power  that  infringed  it, 
they  would  no  doubt  have  been  within  their  technical  right. 
Or,  if  the  disagreement  between  the  belligerents  had  related 
to  a small  and  unimportant  point  in  the  treaty,  they  might 
have  been  allowed  to  settle  their  quarrel  without  interference, 
on  the  understanding  that  the  other  stipulations  remained  in 
force  unaffected  by  the  war. 

Ordinary  Treaties  to  which  one  or  more  powers  besides  the 


310 


THE  DEFINITION  OF  WAR 


belligerents  are  parties,  are  affected  by  the  war  according  to 
their  subject-matter.  Thus  an  alliance  between  three  states 
would  be  destroyed  altogether  if  war  broke  out  between  two 
of  them  ; a Treaty  of  Commerce  would  cease  to  operate 
between  the  belligerents,  but  would  remain  in  force  between 
each  of  them  and  the  other  states  who  were  parties  to  it  ; 
and  a Convention  with  regard  to  maritime  capture  would 
come  into  operation  between  the  belligerents,  and  between 
each  of  them  and  the  neutral  signatory  powers. 

§ 167. 

We  have  now  to  deal  with  treaties  to  which  the  belliger- 
ents only  are  parties.  Considered  with  reference  to  the 
The  effect  of  war  effect  of  war  upon  them,  they  fall  into  four 

upon  treaties  to  , T . . „ , u , , . 

which  the  beiiiger-  classes.  In  the  hrst  we  may  put  those  to 

parties.  which  the  name  Pacta  Transitoria  has  been 

given.  They  are  agreements  fulfilled  by  one  act  or  series 
of  acts,  which  produce  by  being  once  performed  a permanent 
effect.  Boundary  Conventions  and  Treaties  of  Cession  or 
Recognition  are  examples.  War  has  no  effect  upon  them. 
They  remain  unchanged  in  spite  of  it.  For  example,  the 
boundaries  between  belligerent  states  may  be  readjusted  in 
consequence  of  the  war  ; but  till  the  readjustment  is  effected 
by  the  treaty  of  peace  or  by  completed  conquest,  the  old 
territorial  distribution  remains  legally  in  force.  The  next 
class  is  made  up  of  Treaties  of  Alliance  and  conventions 
binding  generally  to  frendship  and  amity.  It  is  clear  that 
they  are  entirely  destroyed  by  the  war.  In  the  third  class 
we  may  place  conventions  for  regulating  ordinary  social, 
political,  and  commercial  intercourse,  such  as  Treaties  of 
Commerce  and  Extradition  Treaties.  The  effect  of  war 
upon  instruments  of  this  kind  is  very  doubtful.  They  are, 
of  course,  suspended  while  the  Avar  lasts  ; but  it  is  a much- 
disputed  question  Avhether  they  revive  again  at  the  conclu- 
sion of  peace,  or  are  destroyed  by  the  Avar  and  require  to  be 


AND  OTHER  PRELIMINARY  POINTS. 


311 


re-enacted  if  they  are  to  come  into  force  again  when  it  is 
over.  The  practice  of  states  exhibits  a lamentable  absence  of 
uniformity.  Some  treaties  of  peace  expressly  stipulate  for 
the  revival  of  postal  and  commercial  agreements  subsisting 
before  the  war,  the  inference  being  that  the  stipulation  was 
necessary  to  give  force  to  the  revived  arrangements.  Other 
treaties  contain  no  covenant  for  revival,  and  yet  under  such 
circumstances  agreements  of  the  kind  we  are  considering 
have  been  acted  upon  after  the  peace  on  the  understand- 
ing that  they  were  restored  to  efficiency  by  it.  In  judicial 
decisions  we  find  a nearer  approach  to  a fixed  rule.  The 
Supreme  Court  of  the  United  States  laid  down  in  the  case  of 
the  Society  for  the  Propagation  of  the  Gospel  v.  the  Town 
of  New  Haven1  that  the  stipulations  regarding  confiscations 
and  alienage  in  the  Treaties  of  1783  and  1794  between  the 
United  States  and  Great  Britain  were  of  a permanent  char- 
acter, and  were  not,  therefore,  abrogated  by  the  War  of 
1812,  though  their  enforcement  was  suspended  while  it 
lasted.  And  in  England  in  1830  the  Master  of  the  Rolls 
decided  in  the  case  of  Sutton  v.  Sutton  2 in  favor  of  the  per- 
manency of  the  Treaty  of  1794  which  gave  to  citizens  of  each 
country  and  their  heirs  and  assigns  the  right  to  hold  land  in 
the  other.  With  these  facts  before  us  we  may  venture  to 
say  that,  though  no  rule  can  be  laid  down  as  undoubted  law, 
it  is  best  to  hold  on  general  principles  that  treaties  of  the 
kind  we  are  now  considering  are  merely  suspended  by  war 
and  revive  at  the  conclusion  of  peace.  The  fourth  and  last 
class  contains  treaties  which  regulate  the  conduct  of  the 
contracting  parties  towards  each  other  when  they  are  bel- 
ligerents, or  when  one  is  a belligerent  and  the  other  is  neu- 
tral. Cases  in  point  are  afforded  by  the  numerous  agreements 
giving  to  the  subjects  of  each  of  the  contracting  powers  the 
right  to  remain  in  the  territory  of  the  other  should  the  two 
countries  be  at  war,  and  by  stipulations  for  the  regulation  of 

1 Wheaton,  Reports  of  U.  S.  Supreme  Court , VIII.,  494. 

2 Russell  and  Mylne,  Chancery  Reports,  I.,  663. 


312 


THE  DEFINITION  OF  WAR 


maritime  capture.  The  effect  of  war  up<jn  all  treaties  of 
this  class  is  to  bring  them  into  active  operation. 

What  we  have  said  above  applies  not  only  to  whole  treaties, 
but  also  to  separate  stipulations  in  treaties  dealing  with  sev- 
eral subjects.  With  the  aid  of  the  table  printed  on  the  next 
page  it  is  hoped  that  the  careful  reader  will  be  able  to  see 
his  way  through  this  intricate  subject.  The  sweeping  state- 
ments to  be  found  in  diplomatic  correspondence  concerning 
the  effect  of  war  on  treaties  may  he  passed  over  with  little 
respect.1  They  are  invariably  made  in  support  of  a foregone 
conclusion.  The  method  of  observation,  analysis  and  classi- 
fication is  the  only  one  capable  of  yielding  fruitful  results. 


1 Wharton,  International  Law  of  the  United  States,  § 135. 


AND  OTHER  PRELIMINARY  POINTS. 


313 


168. 


TABLE  SHOWING  THE  EFFECT  OF  WAR  ON  TREATIES  TO  WHICH 
THE  BELLIGERENTS  ARE  PARTIES. 


(a)  When  the  war  is  Unaffected, 
quite  unconnected  with 
the  treaty. 


I.  Treaties 
to  which  other 
powers  beside 
the  belliger- 
ents are  par- 
ties. 


(J ) Great 
International 
Treaties. 


(6)  When  the  war 
does  not  arise  out  of  the 
treaty,  but  prevents  the 
performance  of  some  of 
its  stipulations  by  the 
belligerents. 


(c)  When  the  war 
arises  out  of  the  treaty. 


Unaffected  as  re- 
gards the  other  stipu- 
lations, and  entirely 
unaffected  with  re- 
gard to  neutral  sig- 
natory powers. 

Effect  doubtful,  de- 
pending chiefly  on 
will  of  neutral  signa- 
tory powers. 


( B ) Ordinary  Treaties  to 
which  one  or  more  powers  be- 
side the  belligerents  are  par- 
ties. 


Effect  depends  upon  subject- 
matter.  Generally  suspended 
or  abrogated  with  regard  to 
belligerents;  unaffected  with 
regard  to  third  parties. 


(а)  Pacta  Transitoria.  Unaffected. 

(б)  Treaties  of  Alliance.  * Abrogated. 


II.  Treaties 
to  which  the 
belligerents 
only  are  par- 
ties. 


(c)  Treaties  for  regulating 
ordinary  social  and  commercial 
intercourse,  such  as  postal  and 
commercial  treaties,  conven- 
tions about  property,  etc. 

(d)  Treaties  regulating  the 
conduct  of  signatory  powers 
towards  each  other  as  belliger- 
ents or  as  belligerent  and 
neutral. 


Effect  doubtful.  Generally 
the  treaty  of  peace  deals  with 
such  matters ; if  not,  it  is  best  to 
take  the  stipulations  as  merely 
suspended  during  war. 

Brought  into  operation  by 
war. 


CHAPTER  II. 


THE  ACQUISITION  BY  PERSONS  AND  PROPERTY  OF  ENEMY 

CHARACTER. 

§ 169. 

Enemy  character  is  a quality  possessed  in  a greater  or  less 
measure  by  persons  and  things.  It  is  by  no  means  constant ; 
Enemy  character,  6ut  may  be  likened  to  a taint  which  in  some 
will c hh h i d iu du a is°  cases  is  powerful,  in  others  weak,  and  may  be 
possess  it.  0f  any  qegree  0f  strength  between  the  two  ex- 

tremes. Some  persons  are  enemies  in  the  fullest  sense  of 
the  word  ; that  is  to  say  they  may  be  killed  by  the  public 
armed  forces  of  the  state.  Others  are  enemies  only  in  the 
sense  that  a certain  limited  portion  of  their  property  may  be 
subjected  to  the  severities  of  warfare.  And  it  is  the  same 
with  things.  Sometimes  they  are  enemy  property  in  the 
sense  that  they  may  be  captured  wherever  it  is  lawful  to 
carry  on  hostilities  : sometimes  they  may  be  taken  only 
under  very  special  circumstances.  We  will  endeavor  to 
arrange  both  enemy  persons  and  enemy  property  in  an 
ascending  and  descending  scale,  according  to  the  degree 
in  which  the  hostile  character  is  impressed  upon  them. 

§ 170. 

First  among  those  individuals  who  may  be  regarded  as 
enemies  we  must  place 

Persons  found  in  the  military  or  naval  service  of  the  enemy  state. 

These  are  enemies  to  the  fullest  extent.  They  may  be 
killed  or  wounded  in  fair  fight  according  to  the  laws  of  war, 

314 


THE  ACQUISITION  OP  ENEMY  CHARACTER. 


315 


and,  if  captured,  may  be  lield  as  prisoners  of  war.  Their 
nationality  makes  no  difference  in  this  respect.  If  any  of 
them  are  neutral  subjects,  they  can  claim  no  Persons  enrolled  in 

the  enemy’s  fight- 
ing forces  are  ene- 

. ....  . mies  to  the  fullest 

special  seventies,  but  they  are  subject  to  the  extent, 
ordinary  risks  and  incidents  of  civilized  warfare.  Enrol- 
ment in  the  public  armed  forces  of  a belligerent  puts  them 
in  the  same  position  as  their  comrades  who  are  subjects  of 
the  state  for  which  they  are  fighting.  Their  own  state  may 
possibly  at  some  future  time  punish  them  for  breach  of  her 
neutrality  regulations  in  joining  a foreign  army  to  fight 
against  a power  with  which  she  is  at  peace  ; but  the  enemy 
must  treat  them  as  lawful  combatants.  The  only  exception 
to  this  rule  occurs  when  a state  finds  subjects  of  its  own 
fighting  against  it  in  the  ranks  of  its  foes.  In  such  a case 
it  would  have  the  right,  should  it  capture  them,  to  execute 
them  as  traitors,  instead  of  treating  them  as  prisoners  of 
war. 

§ 171. 

The  next  class  of  enemies  are 


immunities  on  that  account.  They  are  free  from 


Seamen  navigating  the  merchant  vessels  of  the  enemy  state. 

These  persons  differ  from  ordinary  combatants  in  that  they 
may  not  attack  the  enemy  on  their  own  initiative,  and 
from  ordinary  non-combatants  in  that  they  may  crews  of  the  en- 
fight  to  defend  their  vessel  if  it  is  attacked  by  v^sseis'areenemies 
the  enemy.  They,  therefore,  occupy  a position  111  a Iesser  de?ree- 
between  the  fighting  forces  and  the  civilian  population. 
Should  a fight  be  forced  upon  them  in  defence  of  their 
vessel  from  a hostile  cruiser,  they  are  thereby  placed  in  the 
position  of  combatants,  and,  if  captured,  must  be  held  as 
prisoners  of  war.  But  if  they  attack  other  vessels  they  may 
be  subjected  to  all  the  severities  which  International  Law 
decrees  against  non-combatants  who  perform  hostile  acts 
against  the  enemy. 


316  THE  ACQUISITION  BY  PERSONS  AND  PROPERTY 

§ 172. 

Travelling  down  the  scale  we  now  come  to 

Non-combatant  subjects  of  the  enemy  state. 

But  though  they  must  be  reckoned  as  enemies,  they  do 
not  possess  the  hostile  character  to  such  an  extent  that  they 
Non-combatant  may  be  slain  or  made  prisoners  as  long  as  they 
emy  state  are  ene-  live  quietly  and  take  no  part  m the  contest. 

mies  in  a lesser  rp,,  . . . , , • , , . . 

degree  stiii.  1 heir  property  is,  however,  subject  to  certain 
severities,  such  as  capture  at  sea  if  found  under  the  enemy 
flag,  and  requisitions  and  contributions  on  land.  The 
nature  and  extent  of  these  possibilities  will  be  shown  in  our 
discussion  of  the  incidents  of  warfare  on  land  and  sea,  where 
it  will  further  appear  that  the  non-combatant  population  of 
invaded  districts  may  be  compelled  to  perform  certain  per- 
sonal services  for  the  invader.1  But  most  of  these  dangers 
and  severities  are  escaped  if  the  non-combatant  enemy  sub- 
ject is  domiciled  in  a neutral  country.  He  does  not- then 
increase  the  resources  of  the  enemy  by  the  payment  of  taxes 
and  the  increase  of  wealth  due  to  his  trading  operations. 
Moreover  he  resides  in  a place  where  no  warlike  operations 
can  be  carried  on  and  consequently  is  free  from  personal 
molestation.  In  so  far  as  his  trade  and  his  other  proprie- 
tary interests  are  connected  with  the  neutral  country,  he 
bears  a neutral  and  not  an  enemy  character  ; but  if  he  should 
possess  property  in  the  country  of  his  allegiance,  and  the 
enemy  should  occupy  the  district  in  which  it  was  situated, 
it  would  be  treated  by  them  as  enemy  property.  It  was 
decided  in  the  case  of  the  Danous 2 that  a British  subject, 
resident  in  the  neutral  country  of  Portugal,  in  a war  be- 
tween Great  Britain  and  Holland,  was  not  only  neutral  as 
regards  the  property  connected  with  his  Portuguese  domicil, 
but  was  even  free  to  carry  on  a trade  allowed  to  neutrals 
between  Portugal  and  Holland. 

1 See  § 192.  2 Robinson,  Admiralty  Reports,  IV.,  255,  note. 


OF  ENEMY  CHARACTER. 


317 


§173. 

Another  class  of  persons  who  possess  the  enemy  character 
in  some  degree  are 

Persons  resident  in  an  enemy  country , even  though  they  are 
subjects  of  the  country  making  war  on  it  or  of  neutral  coun- 
tries. 

They  are  enemies  to  one  belligerent  in  so  far  as  they  are 
identified  with  the  other.  That  is  to  say,  perSons  other  than 
any  property  they  may  possess  in  connec-  res1denUnjtheS’ 
tion  with  their  domicil  would  be  accounted  areTnemies Tnsu’ 
enemy  property  tor  purposes  of  maritime  cap-  terests  are  identi- 
ture,  and  should  the  district  in  which  they  theirpface^f ' 6 °f 

, residence 

live  be  occupied  they  would  come  under  all 

the  disabilities  incident  to  the  occupation,  just  like  the 

civilian  population  of  enemy  nationality  around  them. 


§ 174. 

We  have  next  to  mention 

Persons  living  in  places  in  the  military  occupation  of  the  enemy. 

These  a state  regards  as  enemies  to  the  extent  of  subject- 
ing to  hostile  capture  their  property  proceeding  from  the 
places  in  question,  even  though  they  may  be  Eesident3in 
parts  of  its  own  territory.  Being  under  enemy  ?iaeCforce3UoPf  theby 
occupation,  their  possession  enriches  the  enemy  fn  so  for  aVtS’63 
for  the  time  being  and  contributes  to  his  e^emyrantrons 
warlike  resources,  while  their  own  country  reaps  concerned- 
no  advantage  from  them.  They  are,  therefore,  liable,  while 
the  occupation  lasts,  to  the  severities  exercised  in  war  against 
the  property  of  non-combatant  subjects  of  the  enemy 
state.  But  if  the  hostile  occupants  are  dispossessed,  the 
inhabitants  are,  of  course,  treated  as  citizens  and  not  as 


318  THE  ACQUISITION  BY  PERSONS  AND  PROPERTY 


residents  in  enemy  territory.  During  the  Civil  War  in  the 
United  States  the  courts  regarded  places  in  the  firm  posses- 
sion of  the  Southern  Confederacy  as  enemy  territory,  and 
the  property  of  persons  domiciled  therein  as  enemy  property 
in  so  far  as  the  rules  of  warlike  capture  were  concerned.1 


§ 175. 

The  last  class  of  persons  who  possess  the  enemy  character 
in  any  appreciable  degree  are 

Neutral  subjects  having  houses  of  trade  in  the  enemy's  country. 


They  are  enemies  only  in  the  sense  that  their  goods  con- 
nected with  these  houses  of  trade  are  liable  to  capture. 

But  if  an  enemy  merchant  has  a house  of  trade 
in  a neutral  country,  his  goods  connected  with 
it  will  be  condemned  as  prize  of  war.  In  the 
first  case  the  character  of  the  place  whence 
the  goods  issue  prevails,  in  the  second  case 
the  national  character  of  the  owner.  In  both  cases  the 
goods  are  captured,  the  severe  laws  of  warfare  not  having 
experienced  in  this  connection  that  modification  in  the  in- 
terests of  commerce  which  has  recently  been  so  conspicuous 
in  other  departments. 


Neutral  subjects 
having  houses  of 
trade  in  the 
enemy’s  country 
are  enemies  to 
the  extent  of  their 
interests  in  the 
enemy’s  trade. 


176. 


We  see  from  the  foregoing  list  of  those  who  are  techni- 
cally enemies,  that  citizenship  and  domicil  are  the  two  great 
summary  of  the  tests  of  hostile  character,  but  that  other  circum- 

unde™ which6  the  stances,  such  as  being  temporarily  or  perma- 
is  acquired  by  nently  in  the  enemy  s service,  or  residing  m 
I ersollb  a district  occupied  by  him,  or  having  a house 

of  trade  in  his  country,  are  taken  into  consideration,  and 
are  held  to  taint  the  individual  concerned  to  a greater  or 
less  degree.  It  should  be  noted  that  because  a person  is 
1 Wheaton,  International  Law  (Dana’s  ed.),  note  160. 


OF  ENEMY  CHARACTER. 


319 


technically  an  enemy  and  his  property,  or  some  of  it, 
enemy  property,  we  are  not  therefore  to  assume  that  it  is  of 
necessity  liable  to  hostile  seizure.  The  circumstances  under 
which  captures  may  be  made  will  appear  as  we  set  forth  the 
rules  of  land  and  sea  warfare. 

§ 177. 

It  is  clear  from  the  foregoing  statements  that  domicil 
modifies  to  a great  extent  the  rules  based  on  nationality. 
Primd  facie  all  subjects  of  the  enemy  state  are  Rules  for  deter- 
enemies,  and  all  subjects  of  neutral  states  are  relation  to  ques- 

0 . tions  of  belligerent 

neutrals  ; but  this  principle  is  qualified  by  the  capture, 
doctrine  that  hostile  character  depends  largely  upon  resi- 
dence. It  is  necessary,  therefore,  to  inquire  what  kind  of 
residence  amounts  in  law  to  domicil,  and  how  far  liability 
to  the  severities  of  war  is  affected  thereby.  Fortunately 
there  are  in  existence  a number  of  decisions  on  these  points 
by  great  Prize  Court  judges  both  in  England  and  in  the 
United  States,  and  it  is  easy  to  gather  from  them  a body  of 
clear  and  consistent  doctrine.  Domicil  is  determined  by  the 
intent  of  the  parties  and  by  the  length  of  their  residence. 
If  the  intent  to  go  to  a certain  place  and  live  there  is  per- 
fectly clear,  a domicil  therein  is  acquired  directly  residence 
commences.  If  the  intent  is  not  clear,  long-continued  resi- 
dence will  create  a domicil ; and  an  intent  to  make  a short 
stay  in  a place  and  then  return  is  held  to  be  overridden  by 
remaining  there  a long  time  and  treating  the  place  as  a home. 
In  every  case  where  a man  is  a citizen  of  one  country  and  has 
his  home  in  another,  the  liability  of  his  property  connected 
with  the  latter  country  to  capture  and  other  incidents  of 
warfare  is  determined  by  domicil  and  not  by  nationality. 
If  the  country  of  his  domicil  be  neutral,  he  has  a neutral 
character  in  so  far  as  his  property  connected  with  that  coun- 
try is  concerned  ; if  it  be  belligerent,  he  has  a belligerent 
character  which  renders  his  property  connected  with  it 
enemy  property  to  the  other  belligerent.  But  any  property 


320  THE  ACQUISITION  BY  PERSONS  AND  PROPERTY 

which  he  may  possess  in  the  country  of  his  citizenship  and 
allegiance  follows  the  condition  of  that  country  as  neutral 
or  belligerent. 

The  effect  of  intent  in  creating  a domicil  of  choice  was 
stated  by  Lord  Camden  in  his  judgment  on  the  case  of  the 
non-Dutch  subjects  who  were  found  by  Admiral  Rodney  in 
the  island  of  St.  Eustatius  when  the  British  took  it  from  the 
Dutch  in  1781.  With  regard  to  those  who  meant  to  remain 
there,  he  laid  down  that  “they  ought  to  be  considered  resi- 
dent subjects  ” of  the  Republic  of  the  United  Netherlands; 
and  he  applied  this  rule  to  the  case  of  Mr.  Whitehill,  a nat- 
ural-born British  subject,  who  had  arrived  in  the  island  only 
a few  hours  before  the  British  fleet  attacked  it,  but  was 
shown  to  have  intended  to  take  up  his  permanent  residence 
therein.1  In  the  case  of  the  Harmony  the  influence  of  time 
upon  domicil  was  exhaustively  considered  in  a judgment  de- 
livered by  Lord  Stowell.  The  vessel  was  an  American  mer- 
chantman which  had  been  brought  in  for  adjudication  by  a 
British  cruiser  in  the  war  between  Great  Britain  and  France 
at  the  end  of  the  eighteenth  century,  on  the  ground  that  the 
cargo  consisted  of  enemy  goods.  The  partners  of  a house  of 
trade  in  the  United  States  claimed  a portion  of  it  as  belong- 
ing to  them,  and  therefore  neutral  property.  Restitution 
was  decreed  with  regard  to  the  share  of  the  partners  residing 
in  the  United  States;  but  in  1800  Lord  Stowell  decided 
against  another  partner,  Mr.  G.  W.  Murray,  on  the  ground 
that  he  was  residing  in  France,  the  country  of  the  enemy. 
Murray  had  travelled  from  the  United  States  to  France  to 
look  after  the  business  of  the  firm  in  that  country;  but  he 
had  remained  in  France  for  four  years  together,  and,  though 
it  was  clear  he  intended  to  return  to  America  where  he  had 
a wife  and  child,  there  was  also  evidence  to  show  that  he 
purposed  to  come  back  again  to  Europe.  Upon  these  facts 
Lord  Stowell  laid  down  that  “a  special  purpose  may  lead  a 
man  to  a country  where  it  shall  detain  him  the  whole  of  his 
1 Wheaton,  International  Law,  § 321. 


OF  ENEMY  CHARACTER. 


321 


life.  Against  such  a long  residence  the  plea  of  an  original 
special  purpose  could  not  be  avowed.”  He  continued, 
“ Supposing  a man  conies  into  a belligerent  country  at  or 
before  the  beginning  of  the  war,  it  is  certainly  reasonable 
not  to  bind  him  too  soon  to  an  acquired  character,  and  to 
allow  him  a fair  time  to  disentangle  himself;  but  if  he  con- 
tinues to  reside  during  a good  part  of  the  war,  contributing 
by  the  payment  of  taxes  and  other  means  to  the  strength  of 
the  country,  he  could  not  plead  his  special  purpose  with  any 
effect  against  the  rights  of  hostility.”  1 These  cases  clearly 
show  that  time  and  intent  are  the  two  great  elements  in 
determining  domicil. 

In  cases  of  acquired  domicil  original  character  easily  re- 
verts. In  order  that  it  may  do  so  nothing  more  is  necessary 
than  that  the  person  domiciled  abroad  should  start  on  his 
return  journey  to  his  native  country,  intending  to  take  up 
his  abode  there.  Thus  in  1800,  in  the  case  of  the  Indian 
Chief,  Lord  Stowell  restored  the  property  of  Mr.  Johnson, 
a citizen  of  the  United  States  domiciled  in  England.  It  had 
been  captured  because  it  was  engaged  in  a traffic  prohibited 
to  British  subjects  but  allowed  to  neutral  American  citizens. 
But  on  proof  that  at  the  time  of  capture  Mr.  Johnson  had 
left  England  on  his  way  to  the  United  States  with  the  in- 
tention of  remaining  there,  Lord  Stowell  decided  that  he 
had  lost  his  domicil  of  choice  and  regained  his  domicil  of 
origin.  “The  character,”  said  the  judge,  “that  is  gained 
by  residence  ceases  by  non-residence.  It  is  an  adventitious 
character,  and  no  longer  adheres  to  him  from  the  moment 
that  he  puts  himself  in  motion  bond  fide  to  quit  the  country 
sine  animo  revertendi.  ’ ’ 2 

These  principles  of  the  British  Prize  Tribunals  were 
deliberately  adopted  by  the  Supreme  Court  of  the  United 
States  in  the  case  of  the  Venus which  arose  during  the  war 

1 Robinson,  Admiralty  Reports , II.,  324,  325. 

2 Ibid.,  III.,  20,  21. 

3 Cranch,  Reports  of  U.  S.  Supreme  Court , VIII.,  253-317. 


322  THE  ACQUISITION  BY  PERSONS  AND  PROPERTY 

of  1812-1814  between  the  two  countries.  They  are  indeed 
the  common  property  of  all  civilized  states,  and  part  and 
parcel  of  the  undoubted  law  of  nations.  It  must,  however, 
be  noted  that  the  national  character  of  Western  merchants 
trading  in  Oriental  countries  still  under  native  rule  is 
determined  neither  by  citizenship  nor  by  residence,  but  by 
the  nationality  of  the  Consulate  under  whose  protection  they 
live  and  on  whose  register  their  names  are  inscribed. 

§ 178. 

We  have  now  to  consider  how  the  enemy  character  is 
acquired  by  property.  To  some  extent  we  have  already 
Enemy  character  dealt  with  this  subject  incidentally  while  dis- 
wMch  property*0  cussing  enemy  persons ; but  we  shall  find  that 
possesses  it.  ^ susceptible  of  separate  treatment,  and  that 
a classification  can  be  made  of  the  various  kinds  of  property 
marked  by  the  hostile  taint.  Certain  characteristics  make 
property  into  enemy  property,  and  as  long  as  it  possesses 
them  it  will  be  subject  to  capture,  if  the  circumstances  of 
locality  and  use  give  a belligerent  the  right  to  take  it. 

§ 179. 

Enemy  property  comprises  first 

Property  belonging  to  the  enemy  state. 

Such  things  as  the  public  armed  vessels  of  the  enemy,  his 
guns  and  munitions  of  war,  are  of  a pre-eminently  hostile 
The  property  of  character,  and  may  be  taken  in  all  places  where 

the  enemy  state  , p , , ‘ • , , 

possesses  the  it  is  laAvlul  to  carry  on  warlike  operations  ; but, 

fully.  as  we  shall  see  m future,1  there  are  other  kinds 

of  property  belonging  to  the  enemy  state  which  are  wholly 
or  partially  exempt  from  confiscation. 


1 See  §§  202,  205. 


OF  ENEMY  CHARACTER. 


323 


§ 180. 

Under  the  head  of  enemy  property 

Property  belonging  to  subjects  of  the  enemy  state 

is  naturally  included,  unless  it  is  connected  with  a neutral 
domicil  acquired  by  its  owner.  In  that  case  it  is  accounted 
neutral  and  remains  free  from  hostile  seizure. 

Since  property  belonging  to  an  enemy  is  primd  facie  enemy 
property,  and  property  belonging  to  a neutral  primd  facie 
neutral  property,  enemy  property-owners  often 
endeavor  at  the  outbreak  of  war  to  transfer  their  enemy  subjects 

...  in  possesses  the 

vessels  to  neutrals  m order  that  the  neutral  nag  enemy  character 

. unless  it  is  con- 

may  protect  them  from  capture,  and  sometimes  nected  with  a 

^ neutral  domicil. 

these  transfers  are  merely  colorable.  The  Prize 
Courts  of  France  do  not  recognize  sales  of  merchant  vessels 
by  enemy  subjects  to  neutral  subjects  during  war.  The 
English  and  American  courts  do  not  go  so  far  as  to  forbid 
them  absolutely,  but  they  scrutinize  every  transfer  very 
rigidly  in  order  to  be  sure  of  the  good  faith  of  the  trans- 
action. Transfers  of  belligerent  vessels  and  goods  to  neu- 
trals effected  in  transitu , that  is  to  say  while  the  voyage  is 
going  on,  are  prohibited  altogether,  not  only  during  hostili- 
ties, but  even  when  made  in  contemplation  of  war.  The 
general  rule  of  maritime  law  in  time  of  peace  is  that  goods 
once  laded  on  board  a vessel  belong  to  the  consignee.  Yet 
special  agreement  is  allowed  to  alter  the  position  of  the 
parties  and  render  the  goods  the  property  of  the  consignor 
till  the  termination  of  the  voyage.  But  in  Avar,  if  the  con- 
signee is  an  enemy,  no  special  agreement  can  divest  him  of 
his  proprietary  rights  in  the  goods  from  the  moment  they 
start  on  their  voyage.  If,  however,  he  is  neutral,  proof  is 
required  that  he,  and  not  the  enemy  consignor,  is  really 
owner,  the  Prize  Courts  in  each  case  leaning  tOAvards  that 
legal  doctrine  Avhich  makes  the  goods  enemy  property  and 
renders  them  liable  to  capture, 


324  THE  ACQUISITION  BY  PERSONS  AND  PROPERTY 

§ 181. 

The  next  kind  of  enemy  property  to  be  considered  may  be 
defined  as 

The  produce  of  estates  owned  hy  neutrals  in  belligerent  territory 
or  in  places  in  the  military  occupation  of  the  enemy,  as  long 
as  it  remains  the  property  of  the  owner  of  the  soil. 

Such  property  is  enemy  property,  even  though  the  neutral 
owners  reside  in  their  own  neutral  country.  The  point  was 
The  produce  of  fully  discussed  and  decided  by  the  Supreme 
neutoisinptaceg  Court  of  the  United  States  in  the  case  of  the 
troUs  enemy  prop-  Thirty  Hogsheads  of  Sugar , which  occurred  in 
belongs' to^the 11  the  war  of  1812-1814.  An  American  privateer 
captured  a cargo  ot  sugar  proceeding  m a British 
vessel  from  the  Danish  island  of  Santa  Cruz  to  a commercial 
house  in  London  at  the  risk  of  its  owner,  the  proprietor  of 
the  estate  from  whence  it  came.  Denmark  was  an  ally  of 
France,  and  Great  Britain  was  at  one  and  the  same  time 
engaged  in  waging  war  on  them  and  carrying  on  a separate 
war  on  different  grounds  with  the  United  States.  In  the 
course  of  her  war  with  Denmark  she  had  captured  the  island 
of  Santa  Cruz  and  held  it  under  her  belligerent  occupation. 
Denmark  was  neutral  in  the  war  between  Great  Britain  and 
the  United  States;  and  the  proprietor  of  the  sugar,  Adrian 
Benjamin  Bentzon,  was  a Danish  subject  who  had  left  Santa 
Cruz  and  was  living  in  Denmark.  But  the  Supreme  Court 
condemned  the  sugar  on  the  ground  that  it  was  the  produce 
of  a place  which  must  be  considered  for  purposes  of  war  as 
belligerent  territory,  and  was  when  captured  the  property 
of  the  owner  of  that  place.1 


1 Cranch,  Revorts  of  U.  S.  Supreme  Court,  IX.,  195-199. 


OF  ENEMY  CHARACTER. 


325 


§ 182. 

The  last  kind  of  property  which  possesses  the  enemy 
character  is 

Property  owned  by  neutrals , but  incorporated  in  enemy  com- 
merce or  subject  to  enemy  control. 

A ship  with  an  enemy  captain  and  crew  employed  in  the 
trade  of  the  enemy  would  be  treated  as  enemy  property, 
even  though  she  belonged  to  a neutral  owner,  , , 

00  1 Neutral  property 

and  the  same  fate  would  probably  befall  a neu-  incorporated  in 
tral  ship  habitually  sailing  under  the  enemy’s  enemy  control  pos- 
flag  or  taking  a pass  or  license  from  the  enemy. 

There  can  be  no  doubt  that  neutral  goods  laden  ftseq'unoJai in 
on  board  a public  armed  vessel  of  the  enemy  p0SltK>n' 
forfeit  their  neutral  character  and  become  liable  to  capture 
as  enemy  property.  But  if  they  are  laden  on  board  an  armed 
enemy  merchantman  their  position  is  not  clearly  defined.  In 
1815  Lord  Stowell  decided  in  the  case  of  the  Fanny  that  the 
fact  of  being  found  on  board  an  enemy  vessel  armed  to  resist 
attack  was  conclusive  against  the  goods.1  But  in  the  same 
year  the  Supreme  Court  of  the  United  States  took  the  con- 
trary view  in  the  case  of  the  Nereide,  and  held  that  unless 
the  neutral  owner  took  part  in  the  armament  or  the  resistance 
his  goods  were  not  liable  to  forfeiture.2  Judge  Story,  how- 
ever, supported  the  English  view  and  delivered  an  elaborate 
dissenting  judgment.  It  appears,  therefore,  that  there  is 
a slight  balance  of  authority  in  favor  of  the  stricter  rule, 
which  seems  on  principle  to  be  the  better  of  the  two,  for  it 
is  difficult  to  see  what  other  object  the  neutral  owner  could 
have  had  in  view,  when  he  selected  an  armed  enemy  mer- 
chantman as  the  vehicle  for  his  goods,  than  to  profit  by  her 
force  in  order  to  defeat  the  search  and  capture  of  the  other 
belligerent. 

1 Dodson,  Admiralty  Reports,  I.,  443-449. 

2 Cranch,  Reports  of  TJ.  S.  Supreme  Court,  388-455. 


326  THE  ACQUISITION  BY  PERSONS  AND  PROPERTY 


§ 183. 

We  are  now  in  a position  to  answer  the  question,  How 
does  property  acquire  the  enemy  character?  Its  legal  con- 
Summary  of  the  dition  is  determined  sometimes  by  the  nation- 


circumstances 
under  which  tl 
enemy  character 


under  which  the  ality  of  the  owner  and  sometimes  by  his  domi- 


is  acquired  by  cil,  sometimes  by  the  character  of  the  place 

property.  from  which  the  property  comes  and  sometimes 

by  the  nature  of  the  control  exercised  over  it.  There 
remains,  however,  a difficulty  connected  with  the  double 
or  ambiguous  character  of  sovereignty  in  certain  cases. 
Fortunately  these  cases  tend  to  decrease  in  number  with  the 
simplification  of  the  political  condition  of  modern  Europe, 
though  it  may  well  be  doubted  whether  recent  assumptions 
of  Protectorates  in  Africa  will  not  add  to  them  in  the 
future.  They  occur  when  two  or  more  powers  can  each 
claim  authority  over  certain  territory.  If  one  of  them  be 
belligerent  and  the  other  neutral,  it  is  difficult  to  tell  how 
the  territory  is  to  be  regarded  for  war  purposes.  The  Pro- 
tectorate exercised  by  Great  Britain  over  the  Ionian  Islands 
gave  rise  to  such  a difficulty  during  the  early  part  of  the 
Crimean  War,  when  the  Leucade,  an  Ionian  vessel,  was 
captured  by  a British  cruiser  and  brought  in  for  adjudication 
before  a Prize  Court  on  a charge  of  trading  with  Russia,  the 
enemy  of  Great  Britain  in  the  war.  It  was  contended  that, 
since  the  Ionian  Islands  were  under  a British  Protectorate, 
they  were  parties  to  the  war  and  their  vessels  were  forbidden 
to  engage  in  commerce  with  the  enemy.  But  Dr.  Lushing- 
ton,  who  tried  the  case,  held  that  the  Ionian  Republic  was 
not  a party  to  the  war.  It  had  a commercial  flag  of  its  own, 
and,  though  Great  Britain  occupied  its  fortresses  and  had 
control  of  its  diplomatic  arrangements,  it  was  not  involved 
in  the  public  acts  of  the  British  Government  unless  specially 
included.  There  had  been  no  special  inclusion  in  the  case 
of  the  then  existing  war.  British  vessels  had  been  forbidden 
to  trade  with  Russia,  but  Ionian  vessels  had  not.  He,  there- 


OF  ENEMY  CHARACTER. 


827 


fore,  restored  the  vessel,  but  would  not  give  costs  against  the 
captors  on  the  ground  that  the  point  was  a very  difficult  one 
and  they  acted  in  perfect  good  faith.1  The  cession  of  the 
Ionian  Islands  to  Greece  in  1864  has  rendered  a repetition 
of  the  case  impossible,  but  we  may  venture  to  point  out  with 
regard  to  it  that  the  judgment  seemed  to  leave  the  determi- 
nation of  the  status  of  the  island  Republic  exclusively  in  the 
hands  of  one  of  the  belligerents.  It  is  possible  to  imagine 
circumstances  in  which  this  would  have  operated  unfairly 
towards  the  other.  If,  for  instance,  Great  Britain  had  used 
the  islands  as  a depSt  and  base  of  naval  operations  and  at 
the  same  time  claimed  immunity  for  their  commerce  as 
being  neutral,  Russia  would  have  had  good  cause  to  com- 
plain. In  discussing  cases  of  double  or  ambiguous  sover- 
eignty, Hall  lays  down  the  rule  that  the  use  to  which  a 
place  is  put  by  the  power  which  exercises  de  facto  control 
over  it  determines  whether  it  should  be  regarded  as  neutral 
or  belligerent  territory.2  This  test  is  at  once  simple,  effec- 
tive, and  fair  as  between  the  hostile  powers;  and  we  may 
hope  that  it  will  be  adopted  in  all  future  cases. 

1 Spinks,  Admiralty  Reports,  II.,  212. 

2 Hall,  International  Law,  § 174. 


CHAPTER  III. 


THE  LAWS  OP  WAE  WITH  REGARD  TO  ENEMY  PERSONS. 

§ 184. 

It  will  be  convenient  to  begin  by  considering  the  case  of 
enemy  subjects  found  in  a state  at  the  outbreak  of  war. 
The  treatment  ac-  The  treatment  of  such  persons  has  varied 
subject3foeundly  very  much  at  different  times.  In  the  Middle 

in  a state  at  the  . . 

outbreak  of  war.  Ages  a right  to  detain  them  as  captives  was 
held  to  exist,  and,  though  enemy  merchants  were  gener- 
ally allowed  time  to  depart,  the  power  to  arrest  did  not 
become  obsolete  from  disuse.  Accordingly  the  early  pub- 
licists were  obliged  to  lay  down  that  it  existed,  though  they 
strove  to  mitigate  its  severity.  Grotius  declared  that  ene- 
mies found  within  a territory  at  the  outbreak  of  war  might 
be  captured  and  held  as  prisoners  while  the  war  lasted,  but 
he  added  that  they  might  not  be  detained  after  the  termina- 
tion of  hostilities,  as  in  his  day  ordinary  prisoners  were.1 
But  as  commerce  grew  more  powerful  arrest  was  less  fre- 
quent, till  in  the  middle  of  the  eighteenth  century  the  right 
to  resort  to  it  was  denied  by  Vattel;2  and  from  that  day  to 
the  present  a number  of  treaties  have  been  negotiated,  giv- 
ing a time  varying  from  six  months  to  a year  for  withdrawal. 
Such  stipulations  are  hardly  needed  now;  for  the  old  right 
of  arrest  has  been  destroyed  by  the  continuous  contrary  cus- 
tom of  nearly  a hundred  and  fifty  years.  The  only  case  of 

1 Be  Jure  Belli  ac  Pads,  III. , IX. , iv. 

2 Droit  des  Gens,  III.,  § 63. 

328 


LAWS  OF  AVAR  WITH  REGARD  TO  ENEMY  PERSONS.  329 


detention  to  be  found  in  modern  times  occurred  in  1803, 
when  Napoleon  arrested  the  British  subjects  found  in  France 
after  the  rupture  of  the  Treaty  of  Amiens ; but  this  has 
always  been  regarded  as  a violent  proceeding  carried  out  in 
defiance  of  right.  The  modern  doctrine  is  that  expulsion 
may  be  resorted  to  in  extreme  cases,  but  unless  there  are 
special  reasons  to  the  contrary  enemy  subjects  should  be 
allowed  to  remain  in  the  country  as  long  as  they  give  no  aid 
or  information  to  their  own  side.  Great  Britain  inaugu- 
rated this  liberal  policy.  In  1756  at  the  outbreak  of  war 
with  France  she  gave  permission  for  French  subjects  “who 
shall  demean  themselves  dutifully  ” to  remain  in  the  coun- 
try; and  her  Treaty  of  1794  with  the  United  States  was  the 
first  to  provide  that  in  future  wars  between  the  contracting 
parties  subjects  of  each  residing  in  the  country  of  the  other 
should  remain  unmolested  as  long  as  they  lived  peaceably 
and  observed  the  laws,  and  should  be  granted  a term  of 
twelve  months  to  wind  up  their  affairs  and  leave,  if  their 
conduct  caused  them  to  be  suspected.1  Other  states  have 
followed  this  example,  and  treaties  containing  similar  provis- 
ions are  constantly  being  concluded.  The  last  instance  of 
expulsion  occurred  in  1870  when  the  French  Government 
ordered  all  German  subjects  to  leave  the  department  of  the 
Seine  at  the  time  when  the  German  armies  Avere  moving  on 
Paris  and  the  population  was  intensely  excited  against  all 
who  were  suspected  of  belonging  to  the  enemy  nationality. 
The  authorities  felt  doubtful  of  their  ability  to  protect  such 
persons,  and  therefore  adopted  the  extreme  measure  of  com- 
pelling them  to  depart.  It  is  difficult  to  see  how  they  could 
haAre  acted  otherwise  under  the  circumstances  of  the  time, 
when  domestic  revolution  and  foreign  invasion  were  stirring 
the  passions  of  the  people  to  the  lowest  depths.  But  in 
ordinary  Avars  there  is  no  excuse  for  a general  measure  of 
expulsion  directed  against  all  enemy  subjects,  no  matter 

1 Vattel,  Droit  des  Gens , III.,  § 63  ; Treaties  of  the  United  States,  392, 
393. 


330 


THE  LAWS  OP  WAR 


how  quiet  and  peaceable  they  may  be.  The  modern  rule,  in 
the  absence  of  treat}'  stipulations,  is  that  the  right  to  arrest 
no  longer  exists,  and,  though  the  right  to  expel  remains,  it 
should  be  used  sparingly  and  only  in  great  emergencies. 

§ 185. 

The  old  idea  of  war  was  that  it  wrought  an  absolute 
interruption  of  all  relations  between  the  belligerents  ex- 
Ancientandmod-  cePt  those  arising  from  force,  and  delivered 
fJnce1  permissible0  over  the  enemy  and  all  that  he  possessed  to 
Inwar-  unlimited  violence.  Even  so  humane  a man 

as  Grotius,  writing  at  a period  so  late  in  the  world’s  history 
as  1625,  was  obliged  to  declare  that  by  the  law  of  nations 
it  was  lawful  to  put  to  death  all  persons  found  within  the 
enemy’s  territory,  including  women  and  children  and  such 
resident  strangers  as  did  not  depart  within  a reasonable 
time.1  But  he  is  careful  to  add  that  these  extreme  severi- 
ties are  allowed  only  in  the  sense  that  they  are  not  forbidden 
by  the  customs  of  nations.  He  pleads  earnestly  for  better 
practices,  arguing  that  justice  requires  a belligerent  to  spare 
those  who  have  done  no  wrong  to  him,  and  even  when  jus- 
tice does  not  demand  the  exercise  of  mercy,  it  is  approved 
by  goodness,  moderation,  and  magnanimity.  He  excepts  by 
name  from  liability  to  slaughter  women,  children,  old  men, 
priests,  husbandmen,  merchants  and  prisoners.2  But  these 
temper  amenta  belli  are  recommended  by  him  as  counsels  of 
perfection,  rather  than  laid  down  as  actual  law.  They  were 
eagerly  seized  upon  by  the  more  humane  of  his  successors, 
and  gradually  developed  into  a broad  distinction  between 
combatants  and  non-combatants.  From  the  Peace  of  West- 
phalia in  1648  an  improvement  in  the  usages  of  warfare  set 
in,  and  as  they  became  less  severe  publicists  discarded  the 
old  doctrine  that  war  authorized  the  citizens  and  subjects  of 
each  of  the  belligerent  states  to  exercise  unlimited  violence 
1 Be  Jure  Belli  ac  Pads,  III.,  IV.,  vi-xiv. 


2 Ibid.,  III.,  XI.,  ix-xiii. 


WITH  REGARD  TO  ENEMY  PERSONS.  331 

against  its  foes,  and  substituted  for  it  the  theory  that  only 
so  much  stress  may  be  put  upon  an  enemy  as  is  sufficient  to 
destroy  his  power  of  resistance.  War  is  in  its  nature  harsh 
and  cruel.  As  long  as  it  exists  at  all  it  must  involve  hard 
blows  and  terrible  suffering.  But  all  possible  mitigations 
and  restraints  are  contained  within  the  principle  we  have 
just  enunciated  and  can  easily  be  deduced  from  it.  It  limits 
not  only  the  classes  to  whom  violence  may  be  applied,  but 
also  the  measure  and  extent  of  the  violence  when  applied. 
Non-combatants  do  not  contribute  to  the  strength  of  an 
enemy  except  by  paying  taxes  and  affording  supplies.  This 
can  be  prevented  without  subjecting  them  to  personal  attack 
or  plunder,  by  the  process  of  occupying  the  district  where 
they  live.  Hence  it  follows  that  they  may  not  be  destroyed. 
Force  is  necessary  to  overcome  the  resistance  of  the  enemy’s 
fighting  men.  When  that  end  is  attained  further  infliction 
of  pain  is  useless.  Hence  it  follows  that  the  wounded  must 
be  spared  and  those  who  surrender  must  be  received  as  pris- 
oners. 

Several  military  states  have  recently  issued  instructions 
to  their  armies  in  the  form  of  Manuals  containing  a complete 
code  of  rules  for.  use  in  warfare.  The  first  of  these  was  set 
forth  by  the  United  States  in  1863,  and  the  example  has 
been  followed  by  Germany,  France,  Russia  and  England. 
An  attempt  was  made  by  the  Emperor  Alexander  II.  of 
Russia  to  bring  about  the  adoption  of  a common  code  b}r  the 
civilized  states  of  the  world.  At  his  instigation  a confer- 
ence of  representatives  of  all  the  powers  of  Europe  met  at 
Brussels  in  1874  to  discuss  the  laws  of  warfare  on  land. 
The  delegates  were  not  plenipotentiaries,  and  any  agreement 
they  might  come  to  was  to  be  subject  to  further  negotiations 
between  the  governments  concerned.  After  long  discussion 
they  were  able  to  give  their  approval  to  a series  of  articles 
which  would  have  formed  an  excellent  basis  for  a code, 
though  several  difficult  points  were  passed  over  or  evaded.1 

1 British  State  Papers,  Miscellaneous , No.  1 ( 1S75 ),  pp.  320-324. 


332 


THE  LAWS  OF  WAR 


But  Great  Britain  declined  to  enter  into  further  negotia- 
tions on  the  ground  of  the  impossibility  of  any  reconciliation 
of  the  differences  of  opinion  revealed  at  the  previous  con- 
ferences. Nevertheless  the  proposals  agreed  to  at  Brussels 
in  1874  have  had  a great  influence  on  the  Manuals  subse- 
quently issued  by  European  states  for  the  guidance  of  their 
armies,  and  on  the  Code  adopted  by  the  Institut  de  Droit 
International  in  1880. 1 We  shall  refer  to  them  often  in  the 
course  of  this  chapter  and  those  which  follow;  but  it  must 
be  noted  that  they  have  no  other  authority  than  that  which 
is  derived  from  the  agreement  of  a number  of  highly  trained 
experts.  Except  in  so  far  as  they  formulate  general  usage 
they  are  not  International  Law.  A short  review  of  the 
present  usages  of  warfare,  with  regard  first  to  combatants 
and  afterwards  to  non-combatants,  will  show  how  far  miti- 
gations of  its  old  severity  have  been  carried,  and  indicate 
what  further  improvements  may  be  hoped  for  in  conse- 
quence of  the  operation  of  the  principle  we  have  been  con- 
sidering. 

§ 186. 

In  dealing  with  combatants  we  will  commence  with  the 
assertion  that 

Quarter  is  given  except  in  very  extreme  cases. 

When  an  armed  enemy  ceases  to  fight  and  begs  for  mercy, 
he  is  said  to  ask  for  quarter;  and  when  his  life  is  spared 
and  he  is  made  prisoner,  quarter  is  said  to 

The  growth  of  the  . . . 

practice  of  giving  have  been  granted  to  him.  JNot  till  the  be- 
ginning  of  the  seventeenth  century  was  it 
deemed  obligatory  upon  victorious  soldiers  to  give  quar- 
ter to  vanquished  enemies;  and  for  some  time  longer  the 
rule  in  favor  of  it  was  frequently  disregarded.  When  Gus- 
tavus  Adolphus  landed  in  Pomerania  in  1630  he  had  to  make 
a special  agreement  with  the  Imperialists  in  order  to  secure 

1 Tableau  General  de  V Institut  de  Droit  International , 173-190. 


WITH  REGARD  TO  ENEMY  PERSONS.  333 

that  quarter  should  be  granted,  and  was  obliged  to  consent 
to  the  exception  of  Pomeranians  on  his  own  side  and  Croats 
on  the  side  of  his  foes.  In  the  English  Civil  War  between 
King  and  Parliament,  quarter  was  refused  by  the  latter  to 
the  Irish,  though  in  other  respects  the  struggle  was  carried 
on  in  a more  humane  manner  than  was  usual  in  those  times. 
The  practice  of  sparing  the  life  of  a foe  who  asked  for  mercy 
became  thoroughly  established  in  subsequent  wars,  and  was 
so  completely  incorporated  in  the  code  of  military  honor  that 
when  in  1794  the  French  Convention  decreed  that  English 
soldiers  were  not  to  be  admitted  to  quarter,  its  troops  ignored 
the  order  and  took  prisoners  on  the  pretext  that  they  were 
deserters.  According  to  modern  rules  quarter  can  be  refused 
only  in  retaliation  for  some  enormity  committed  by  the 
enemy;  but  even  under  such  circumstances  it  is  better  to 
grant  it,  and  to  find  some  less  cruel  way  of  punishing  the 
offender. 

§ 187. 

The  next  point  is  concerned  with  the  treatment  of  those 
who  have  given  themselves  up  and  received  quarter.  We 
may  briefly  summarize  the  best  practice  with  regard  to  them 
in  the  words, 

Prisoners  of  war  are  cared  for  and  exchanged. 

It  was  the  custom  of  early  times  to  kill  them,  and  some- 
times to  eat  them  also.  Even  now  there  are  tribes  in 
existence  who  first  torture  and  then  feast  The  treatment  of 
upon  captured  enemies.  Slavery  was  regarded  Pnsonersofwar- 
as  a mitigation  of  their  lot;  and  was  justified  by  Roman 
Law  on  the  ground  that  it  was  a merciful  relaxation  of 
the  strict  rules  of  warfare  which  gave  the  victor  a right 
to  the  life  of  his  captives.1  The  reduction  of  prisoners 
to  slavery  was  practised  long  after  the  custom  of  slaughter- 
ing them  had  been  abandoned.  In  comparatively  modern 


1 Justinian,  Institutes , I.,  iii. , 3. 


834 


THE  LAWS  OF  WAR 


times  we  find  them,  not  indeed  sold  into  domestic  servi- 
tude, but  kept  in  a species  of  state  slavery.  As  late  as  the 
seventeenth  century  the  Spaniards  sent  their  prisoners  to  the 
galleys,  and  purchased  Algerine  captives  from  the  Dutch, 
who  did  not  employ  slaves  themselves,  but  seem  to  have  had 
no  objection  to  selling  into  slavery  those  whom  they  cap- 
tured in  war.1  The  custom  of  enslaving  prisoners  of  war 
died  out  in  Europe  early  in  the  eighteenth  century,  except 
as  regards  Turkey  and  the  Barbary  States  more  or  less  de- 
pendent upon  her.  As  the  Porte  came  more  and  more  into 
the  society  of  the  Western  powers  it  conformed  to  their 
usages ; but  hostile  operations,  such  as  the  bombardment  of 
Algiers  by  Lord  Exmouth  in  1816,  were  necessary  before 
the  Barbary  pirates  could  be  taught  to  respect  the  rules  of 
civilized  warfare.  Grotius  declares  that  Christians  ought 
to  be  content  with  ransom  and  refrain  from  reducing  one 
another  to  slavery.2  The  custom  of  allowing  prisoners  of 
war  to  ransom  themselves  seems  to  have  become  general  in 
the  Middle  Ages.  Captives  were  held  to  belong  to  their 
captors,  who  made  bargains  with  them  for  payments  of  money 
in  consideration  of  release.  The  common  soldiers,  who 
could  not  raise  the  funds  wherewith  to  redeem  themselves, 
were  vilely  treated  and  occasionally  slain.  Sometimes  pris- 
oners whose  ransoms  had  been  fixed  were  given  away  as 
presents,  or  transferred  in  payment  of  a debt  like  bank-notes 
or  bills  of  exchange.  In  the  fourteenth  century  the  practice 
arose  of  fixing  a price  by  the  payment  of  which  the  king 
could  buy  prisoners  of  rank  from  their  captors.  The  next 
step  was  to  establish  a fixed  tariff  for  the  ransom  of  prison- 
ers of  all  kinds  ; and  in  the  seventeenth  century  international 
agreements  for  ransom  according  to  an  established  scale  came 
into  vogue,  the  money  being  paid  by  the  state.  About  the 
same  time  we  find  exchange,  which  had  been  mentioned  with 
approval  by  Grotius,3  becoming  common  as  an  alternative  to 

1 Manning,  Law  of  Nations,  IV.,  viii. 

2 Dp  Jure  Belli  ac  Pads,  III.,  VII.,  ix.  3 Ibid.,  III.,  XIV.,  ix. 


WITH  REGARD  TO  ENEMY  PERSONS. 


335 


ransom,  and  sometimes  the  two  are  joined  together  in  one 
agreement.  This  was  the  case  in  the  stipulations  agreed  to 
between  England  and  France  in  1780,  which  are  said  to  be 
the  last  which  recognize  ransom.  They  valued  a marshal 
of  France,  or  an  English  admiral  at  sixty  men.  Officers  of 
lower  grades  were  assessed  in  proportion,  and  the  equivalent 
of  a man  in  English  money  was  a pound  sterling.  Thus  a 
marshal  or  an  admiral  could  be  exchanged  for  sixty  men 
or  ransomed  for  sixty  pounds.1  Exchange  has  been  the  rule 
in  modern  times  and  ransom  has  become  obsolete.  The 
most  recent  usage  of  all  is  that  of  releasing  prisoners  of  war 
on  parole,  that  is  to  say  on  receiving  from  them  their  word 
of  honor  not  to  serve  again  during  the  existing  war  against 
their  captor  or  his  allies.  Generally  none  but  officers  are 
released  on  such  terms,  but  sometimes  whole  armies  or  the 
entire  garrisons  of  besieged  places  have  been  allowed  to 
depart  after  giving  the  required  promise.  Occasionally  a 
prisoner  purchases  liberty  of  movement  within  certain  wide 
limits  by  promising  not  to  attempt  to  escape.  Breach  of 
parole  is  punishable  with  death,  if  the  individual  guilty  of 
it  falls  again  into  the  power  of  his  captors  during  the  same 
war.  According  to  modern  International  Law  the  right  to 
detain  prisoners  ceases  when  the  war  ceases ; and  each  side 
must  then  send  its  captives  home.  But  up  to  the  Peace  of 
Westphalia  of  1648  it  was  necessary  to  make  special  stipu- 
lations for  such  release  without  ransom;  and  in  default  of 
any  arrangement  of  the  kind  the  prisoners  were  detained  in 
a captivity  which,  as  we  have  just  seen,  amounted  to  a form 
of  slavery. 

Prisoners  of  war  are  to  be  treated  with  humanity.  The 
restraints  needful  for  their  safe  custody  may  be  placed  upon 
their  movements ; but  their  confinement  ought  not  to  be 
made  more  rigid  than  the  necessity  of  the  case  demands. 
They  must  be  fed  and  clothed  by  their  captors,  whose  duty 
it  is  to  put  them  in  these  respects  upon  a level  with  their 

1 Manning,  Law  of  Nations , IV.,  viii. 


336 


THE  LAWS  OF  WAR 


own  troops.  They  may  be  employed  in  useful  work  as  long 
as  it  has  no  relation  to  the  war,  and  is  not  excessive  or 
derogatory  to  their  rank  or  social  position.  The  military 
authorities  of  the  captor’s  country  may  allow  them  to  under- 
take private  work.  The  pay  they  receive  for  their  services 
should  be  given  to  them  on  their  release;  but  the  cost  of 
their  maintenance  may  be  deducted  from  it.  Up  to  the  end 
of  the  last  century  belligerents  were  expected  to  maintain 
their  own  soldiers  and  sailors  who  were  prisoners  in  the 
custody  of  an  enemy;  but  the  modern  practice  is  embodied 
in  Article  27  of  the  code  drawn  up  at  the  Brussels  Confer- 
ence of  1874,  the  opening  words  of  which  run,  “The  gov- 
ernment in  whose  power  are  the  prisoners  of  war  undertakes 
to  provide  for  their  maintenance.”  1 

It  is  often  said  that  combatants  only  may  be  made  prison- 
ers of  war;  but  exceptions  to  this  rule  are  allowed  in  the 
case  of  those  non-combatants  who  from  their  position  and 
circumstances  give  direct  aid  to  the  enemy  in  his  hostilities. 
Thus  merchant  sailors  may  be  captured  as  being  possible 
recruits  for  the  fighting  navy,  and  military  police,  teleg- 
raphists, balloonists  and  contractors,  if  present  in  the  field 
of  warlike  operations.  To  these  the  Brussels  Conference, 
adopting  the  provisions  of  Article  50  of  the  American  In- 
structions, added  correspondents  and  newspaper  reporters,2 
but  probably  the  worst  that  would  happen  to  them  if  cap- 
tured in  civilized  warfare  would  be  expulsion  from  the  lines 
of  the  captors.  Members  of  the  enemy’s  royal  family,  his 
chief  Ministers  of  State  and  his  diplomatic  agents  are  liable 
to  capture,  even  though  they  may  not  be  actually  engaged 
in  hostile  operations.  Their  position  makes  them  so  impor- 
tant to  the  enemy  in  the  conduct  of  his  war  that  they  cannot 
be  treated  as  ordinary  non-combatants. 

Military  writers  sometimes  assert  that  a commander  may 
destroy  his  prisoners  if  he  finds  himself  placed  in  such  a 
position  that  it  is  extremely  dangerous  either  to  keep  or  re- 

1 British  State  Papers,  Miscellaneous , No.  1 {1875),  p.  322.  2 Ibid. 


WITH  REGARD  TO  ENEMY  PERSONS. 


337 


lease  them.  It  is  difficult  to  say  that  under  no  imaginable 
circumstances  would  it  be  justifiable  to  kill  prisoners ; but 
we  may  at  least  lay  down  with  confidence  that  the  necessity 
must  be  very  dire  before  so  foul  an  outrage  on  humanity  can 
stand  excused.  In  1799  Napoleon  ordered  the  destruction 
of  four  thousand  prisoners  who  had  formed  part  of  the  gar- 
rison of  Jaffa.  To  feed  them  was  impossible,  as  his  own 
troops  were  almost  starving.  He  could  not  spare  a detach- 
ment to  escort  them  back  to  Egypt;  and  if  he  had  dismissed 
them  on  parole  they  would  at  once  have  joined  the  enemy, 
for  their  religion  absolved  them  from  keeping  faith  with  an 
infidel.  In  this  terrible  conjunction  of  circumstances  the 
French  commander  and  his  officers  discussed  the  fate  of  the 
prisoners  for  two  daj's,  and  at  last  decided  to  order  them  to 
be  shot,  though  they  had  surrendered  on  condition  that  their 
lives  should  be  spared.1  There  can  be  little  doubt  that 
mercy  would  have  been  the  better  policy.  The  massacre 
inspired  the  garrison  of  Acre  with  such  desperate  courage 
that  the  French  failed  in  all  their  assaults  on  the  place,  and 
were  obliged  to  abandon  their  dream  of  Eastern  conquest 
and  retreat  across  the  desert  to  Egypt. 

§ 188. 

The  care  of  those  who  are  injured  in  battle  or  on  tbe 
march  is  one  of  those  matters  in  which  modern  warfare  shows 
to  great  advantage  as  compared  with  its  ancient  prototype. 
In  these  days 

Provision  is  made  for  tending  the  sick  and  wounded ; 

whereas  we  hear  little  of  wounded  in  the  battles  of  an- 
tiquity, and  the  usual  lot  of  enemies  left  helpless  on  the 
field  was  to  be  first  plundered  and  then  The  care  of  the 
killed.  Any  of  the  victor’s  wounded  who  Slck  and  wounded- 
could  struggle  off  the  scene  of  conflict  might  possibly  be 
1 Alison,  History  of  Europe , III.,  xxv. 


338 


THE  LAWS  OF  WAR 


cared  for  in  the  neighborhood;  hut  no  special  provision 
appears  to  have  been  made  for  them  till  1190,  when  at  the 
great  siege  of  Acre  during  the  third  Crusade  the  order  of 
Teutonic  Knights  was  founded  to  tend  them.  For  a long 
time  the  task  of  caring  for  the  sick  and  wounded  Avas  left  to 
private  benevolence ; but  in  the  seventeenth  century  a small 
number  of  surgeons  and  chaplains,  and  a feAV  field  hospitals, 
Avere  provided  by  states  for  their  armies.  Since  then  there 
has  been  steady  and  continuous  progress  in  this  department 
of  army  organization.  In  modern  Avars  state  provision  has 
been  supplemented  by  private  effort;  and  in  some  cases 
neutral  societies  and  individuals  have  given  aid  from  motives 
of  humanity.  But  even  now  those  who  fall  in  struggles 
with  barbarous  or  semi-barbarous  tribes  are  sometimes  ex- 
posed to  terrible  suffering.  In  1799  Napoleon  ordered  his 
own  sick  and  wounded  to  be  poisoned  at  Jaffa  during  the 
retreat  from  Syria,  rather  than  leave  them  behind  to  be 
tortured  and  massacred  by  the  Turks.1  The  last  great  step 
in  advance  Avas  the  negotiation  at  Geneva  in  1864  of  a Con- 
vention regulating  the  care  of  the  sick  and  wounded  by  a 
great  international  agreement  which  has  noAV  been  signed 
by  nearly  all  civilized  powers,  the  United  States  having 
acceded  to  it  in  1882. 2 It  neutralizes  hospitals,  ambulances, 
surgeons,  chaplains,  nurses,  and  generally  all  persons  and 
things  connected  with  the  care  of  the  sick,  provided  that  the 
badge  of  a red  cross  on  a white  ground  is  shoAvn  on  a flag 
or  on  the  arm  as  the  case  may  be.  Field  hospitals  captured 
by  the  enemy  may  be  withdrawn  by  their  staff  when  they 
are  no  longer  needed;  and  in  no  case  may  the  staff  be 
detained  as  prisoners.  Enemy  Avounded,  when  healed,  are 
to  be  sent  back  to  their  country  if  they  are  incapable  of 
further  military  service,  and  if  able-bodied  may  be  allowed 
to  depart  on  condition  of  not  serving  again  during  the  same 
Avar.  The  Convention  needs  revision  on  some  points  and 

1 Alison,  History  of  Europe , III.,  xxv. 

2 Treaties  of  the  United  States,  p.  1150. 


WITH  REGARD  TO  ENEMY  PERSONS. 


339 


additions  on  others.  Voluntary  assistance  should  be  brought 
under  stricter  rules,  and  the  contracting  powers  should  make 
intentional  violations  of  the  Convention  penal  under  their 
Articles  of  War,  a step  which  they  declined  to  take  when  it 
was  proposed  in  1868.  In  that  year  a number  of  additional 
articles  were  drawn  up,  relating  chiefly,  though  not  entirely, 
to  warfare  at  sea;  hut  they  have  not  at  present  received 
ratification,  and  therefore  cannot  be  regarded  as  binding  in 
strict  law  upon  the  powers  which  have  signed  them,1  though 
some  of  their  provisions,  such  for  instance  as  those  which 
relate  to  the  neutralization  of  hospital  ships,  will  probably 
be  acted  upon  by  humane  belligerents  in  future  wars.  The 
Brussels  Conference  in  1874  embodied  in  its  proposed  code 
the  statement  that  the  duties  of  belligerents  with  regard  to 
the  treatment  of  the  sick  and  wounded  are  regulated  by  the 
Geneva  Convention,2  which  thus  received  the  sanction  of 
whatever  authority  may  be  held  to  attach  to  the  approval 
of  the  military  representatives  of  the  European  states. 


189. 


Sieges  and  captures  by  assault  at  the  close  of  sieges 
remained  the  opprobrium  of  International  Law  long  after 
humanity  had  won  recognition  in  other  de-  . 

J ° The  improved 

partments  of  the  field  of  warfare.  The  Roman  treatment  of  the 

v garrisons  of  cap- 

rule  was  to  spare  a town  which  surrendered  turedPIaces- 
before  the  battering-ram  touched  its  walls.  But  if  any 
resistance  was  made,  every  living  thing  in  the  place  was 
slaughtered.  In  the  Middle  Ages  it  was  deemed  an 
offence  for  a garrison  to  prolong  a resistance  which  the 
besiegers  regarded  as  fruitless ; and  not  only  were  they  slain 
without  mercy  if  the  place  was  taken  by  assault,  but  if  it 
was  finally  given  up  some  or  all  of  them  were  executed. 
The  demand  of  Edward  III.  of  England  for  the  lives  of 

1 Treaties  of  the  United  States,  p.  1153. 

2 British  State  Papers,  Miscellaneous , No.  1 (1575),  pp.  322,  324. 


340 


THE  LAWS  OF  WAR 


twelve  burghers  of  Calais,  when  it  surrendered  to  him  in 
1347  after  a year’s  siege,  was  a measure  of  exceptional  mild- 
ness rather  than  exceptional  severity.  The  revolt  of  the 
United  Netherlands  against  Spain,  and  the  wars  of  religion 
which  followed  it,  furnished  example  after  example  of  hor- 
rible barbarity  inflicted  not  only  on  the  armed  defenders  of 
captured  places  but  also  on  the  unarmed  inhabitants.  After 
the  Thirty  Years’  War  the  slaughter  of  non-combatants  by 
the  soldiery  who  had  forced  an  entrance  into  a beleaguered 
city  came  to  be  regarded  as  an  atrocity;  but  it  has  been  held 
in  comparatively  recent  times  that  the  defenders  of  a fortress 
taken  by  storm  have  no  right  to  quarter.  This  was  the 
opinion  of  the  Duke  of  Wellington,1  though  his  own  practice 
was  to  make  prisoners  of  any  who  surrendered  themselves. 
In  the  Peninsular  War  the  French  repeatedly  threatened 
Spanish  garrisons  with  extermination  if  they  stood  an 
assault.2  But  Napoleon  exacted  from  his  own  generals  a 
tenacity  he  deemed  criminal  in  an  enemy.  The  commanders 
of  his  fortresses  were  instructed  never  to  surrender  without 
standing  at  least  one  assault,  and  those  of  them  who  did  not 
hold  out  to  the  last  were  treated  with  great  severity.  But 
though  the  old  rule  which  devoted  to  slaughter  the  defenders 
of  places  taken  by  storm  has  been  shamefully  tenacious  of 
life,  it  has  at  length  disappeared  from  modern  warfare,  and 
we  are  able  to  declare  that 

The  ancient  practice  of  refusing  quarter  to  the  defenders  of 
places  taken  by  assault  is  now  obsolete. 

Some  remnants  of  it  lurk  in  the  theory  that  it  is  an  offence 
to  defend  an  open  and  unfortified  town,  or  to  resist  in  a weak 
place  the  attack  of  a vastly  superior  force.  These  views 
were  always  difficult  of  application.  It  was  impossible  to 
define  the  exact  extent  of  defensive  works  which  made  a 

1 Despatches , 2d  Series,  I.,  93,  94. 

2 Bernard,  Growth  of  the  Laws  of  War  in  the  Oxford  Essays  for  1856,  p. 
Ill,  note. 


WITH  REGARD  TO  ENEMY  PERSONS. 


341 


place  into  a fortress,  or  the  exact  measure  of  weakness  which 
rendered  a commander  liable  to  extremities  if  he  ventured 
upon  resistance.  And  now  the  changed  conditions  of  war- 
fare have  made  them  completely  out  of  date.  To-day  earth- 
works are  highly  efficient  fortifications,  and  they  can  be 
thrown  up  in  a few  hours  and  gradually  strengthened  till 
they  are  able  to  resist  siege  artillery.  Plevna  was  a small 
open  town  when  Osman  Pasha  determined  to  hold  it  as  a 
defensive  point  in  the  summer  of  1877 ; but  by  incessant 
spade  labor  and  careful  engineering,  he  turned  it  in  a few 
weeks  into  a fortress,  which  the  best  troops  of  Russia 
assaulted  three  times  in  vain.1  The  distinction  between 
fortified  and  unfortified  places  may  therefore  be  said  to  have 
vanished.  Every  place  is  potentially  a fortress,  if  its  natural 
situation  is  favorable  for  defence;  and  no  general  would  now 
claim  the  right  to  subject  to  military  severities  an  army 
which  held  improvised  works  against  his  attack.  Recent 
wars  between  civilized  powers  have  afforded  no  instance  of 
the  slaughter  of  a garrison;  and  we  may  lay  down  with 
confidence  that  the  defenders  of  a captured  place  are  as 
much  entitled  to  quarter  as  defeated  soldiers  taken  on  the 
battle-field. 

§ 190. 

The  last  point  to  note  with  regard  to  combatants  is  that 

Certain  means  of  destruction  are  forbidden. 

It  is  now  held  that  the  sole  object  of  warlike  operations  is 
to  destroy  the  enemy’s  power  of  resistance  and  induce  him 
to  make  terms  as  soon  as  possible.  Conse- 

. . . a.  The  prohibition 

quently  any  applications  of  force  which  inflict  of  certain  means 

. . .of  destruction. 

more  pain  and  suffering  than  is  necessary  m 
order  to  attain  this  end  are  forbidden  by  modern  Inter- 
national Law.  A bullet,  for  instance,  will  shatter  an 
arm  and  render  its  possessor  useless  as  a fighting  man, 

1 Annual  Register  for  1877 , pp.  193-198. 


342 


THE  LAWS  OF  WAR 


just  as  well  as  a scrap  of  iron  or  glass  which  inflicts 
a jagged  wound  very  difficult  to  heal.  The  use  of  such 
missiles  is  therefore  prohibited;  and  the  principle  which 
condemns  them  is  applied  in  other  directions  also.  A feeling 
against  treachery  is  the  base  of  further  prohibitions.  All 
the  forbidden  methods  of  destruction  will  be  discussed  in 
the  chapter  on  The  Agents  and  Instruments  of  Warfare. 


§ 191. 

We  have  now  to  sketch  the  usages  of  war  with  regard  to 
the  persons  of  non-combatants.  We  have  already  seen  that 
The  gradual  ameii-  till  the  distinction  between  combatants  and 
condition^ o^non-  non-combatants  was  clearly  and  definitely  em- 
combatams.  bodied  in  the  laws  of  war  in  the  latter  half 
of  the  seventeenth  century,  the  unarmed  inhabitants  of 
an  invaded  country  were  liable  to  be  slaughtered  at  the 
will  of  an  invader,  and  were  almost  always  exposed  to 
shameful  indignities,  even  though  in  Christian  Europe  it 
was  not  considered  right  to  reduce  them  to  slavery.  But 
it  must  be  remembered  that  the  change  to  more  humane 
methods  did  not  take  place  in  a moment  without  previous 
hint  or  warning.  It  was  a matter  of  gradual  growth.  We 
find  in  ancient  and  mediaeval  warfare  instances  of  humanity 
towards  non-combatants  which 'increase  in  number  as  time 
goes  on,  though  occasionally  there  is  a period  of  distinct 
retrogression,  like  the  terrible  Thirty  Years’  War,  which 
was,  however,  followed  by  seventy  years  of  rapid  progress. 
When  Henry  V.  of  England  invaded  France  in  1415,  he 
forbade  violence  to  the  peaceful  population  and  insults  to 
women,  and  severely  punished  the  perpetrators  of  such  out- 
rages, whereas  less  than  a century  before  the  track  of  the 
armies  of  Edward  III.  was  marked  by  a broad  line  of  fire 
and  slaughter.  The  famous  Chevalier  Bayard  was  remark- 
able for  his  humanity  to  the  inhabitants  of  invaded  districts ; 
and  when  the  Earl  of  Essex  took  Cadiz  in  1596  he  permitted 


WITH  REGARD  TO  ENEMY  PERSONS. 


343 


the  inhabitants  to  ransom  themselves  in  a body  and  depart 
in  English  ships  to  a place  of  safety  before  the  pillage  began. 
They  had,  however,  to  be  content  to  escape  with  nothing  but 
the  clothes  they  wore,  saving  and  excepting  some  ancient 
gentlewomen  who  were  allowed  to  put  on  two  or  three  best 
gowns  apiece.  After  the  departure  of  the  inhabitants  the 
place  was  sacked  and  destroyed,  with  the  exception  of  the 
churches  and  religious  houses.  Such  proceedings  would 
now  be  denounced  as  barbarous,  but  then  the  English  were 
praised  for  their  “heroical  liberality.”  And  certainly  their 
conduct  was  an  improvement  upon  the  methods  of  coast 
warfare  in  vogue  at  the  time  and  previously,  when  to  descend 
upon  the  shores  of  an  enemy,  surprise  and  sack  his  seaports, 
hang  the  peaceful  inhabitants  over  their  own  doorsteps,  and 
set  fire  to  the  place  on  departing  from  it,  were  regarded  as 
ordinary  incidents  of  hostilities.1  The  beginning  of  the 
eighteenth  century  saw  the  general  recognition  of  the  rule 
that  non-combatants  were  not  to  be  subjected  to  slaughter 
or  outrage.  But  nevertheless  many  severe  practices  for 
which  no  reasonable  justification  could  be  pleaded  still 
remained  as  survivals  of  the  older  order.  Thus  the  inhab- 
itants of  invaded  districts  were  often  compelled  to  swear 
fidelity  and  allegiance  to  the  invading  sovereign,  and  some- 
times even  to  renounce  their  allegiance  to  their  lawful 
rulers.  In  modern  warfare  no  attempt  would  be  made  to 
interfere  with  their  political  fidelity,  though  while  the 
armies  of  the  enemy  actually  held  a district  in  firm  posses- 
sion its  inhabitants  would  be  punished  if  they  gave  aid  and 
information  to  their  own  side.  The  treatment  accorded  to 
non-combatants  according  to  the  best  rules  and  practices 
of  modern  warfare  may  be  described  under  the  heads  given 
in  the  sections  which  follow. 

1 Bernard,  Growth  of  the  Law  of  War  in  the  Oxford  Essays  for  1856,  pp. 
97-99,  130-133. 


344 


THE  LAWS  OF  WAR 


§ 192- 

The  first  rule  we  lay  down  with  regard  to  this  portion  of 
our  subject  is  that 

JYo?i-combatants  are  exempt  from  personal  injury , except  in  so 
far  as  it  may  occur  incidentally  in  the  course  of  the  lawful 
operations  of  warfare. 

If  civilians  travelling  in  a train  containing  soldiers  are  shot 
in  an  attack  upon  it  by  the  enemy,  or  if  women,  children 
The  extent  of  the  ail(l  unarmed  men  are  killed  in  the  course  of  a 
combatants  'from n bombardment,  or  during  the  capture  of  a village 

personal  injury.  situate(] 

upon  a battle-field,  a regrettable  inci- 
dent has  taken  place,  but  no  violation  of  the  laws  of  war  has 
been  committed.  But  had  the  guns  of  the  besiegers  been 
deliberately  turned  upon  the  dwelling-houses  of  the  bom- 
barded town,  or  had  an  open  and  undefended  village  been 
fired  into,  the  persons  responsible  for  such  proceedings  would 
have  been  justly  accused  of  barbarity  forbidden  by  modern 
usage.  A custom  is  springing  up  of  allowing  women  and 
children  to  leave  a besieged  place  before  the  commencement 
of  a bombardment,  but  it  is  not  sufficiently  general  to  have 
acquired  binding  force.  During  the  siege  of  Strasburg  in 
1870  the  Germans  on  two  occasions  allowed  non-combatants 
to  pass  through  their  lines  into  a place  of  safety;  but  a 
few  months  later  they  declined  to  permit  “ useless  mouths  ” 
to  depart  from  Paris  before  the  bombardment  commenced, 
because  it  was  the  intention  of  their  commanders  to  reduce 
the  city  by  famine  rather  than  capture  it  by  fighting. 

The  peaceful  inhabitants  of  an  invaded  country,  who  are 
content  to  go  about  their  ordinary  avocations  and  submit  to 
the  lawful  demands  of  the  invaders,  have  a right  to  protection 
for  life  and  limb  and  family  honor.  The  exercise  of  their 
religion  should  be  freely  allowed,  the  law  of  the  land  with 
regard  to  private  rights  should  be  permitted  to  remain  in 


WITH  REGARD  TO  ENEMY  PERSONS.’ 


345 


force,  and  tlie  population  should  not  be  compelled  to  take 
part  in  military  operations  against  their  own  country.  But 
the  invaders  may  demand  the  services  of  guides  to  lead  them 
from  one  place  to  another,  and  they  may  impress  drivers  for 
provision  wagons  and  vehicles  of  all  kinds.  Any  resistance 
to  the  exercise  of  these  rights  may  be  severely  punished,  and 
a guide  who  wilfully  misleads  may  be  put  to  death.  Host- 
ages may  be  taken  for  the  fidelity  of  guides,  the  payment  of 
war  contributions  and  other  purposes ; but  the  laws  of  war 
no  longer  allow  them  to  be  executed  if  the  obligation  for  the 
performance  of  which  they  are  pledges  is  not  duly  fulfilled. 
The  protection  accorded  to  non-combatants  is  conditional 
upon  good  behavior  on  their  part.  They  must  not  perform 
acts  of  war  against  the  invaders  while  purporting  to  live 
under  their  rule  as  peaceful  civilians.  An  inhabitant  of  an 
occupied  district  who  cuts  off  stragglers,  kills  sentinels,  or 
gives  information  to  the  commanders  of  his  country’s  armies, 
may  be,  and  probably  is,  a high-souled  and  devoted  patriot ; 
but  nevertheless  the  laws  of  war  condemn  him  to  death,  and 
the  safety  of  the  invaders  demands  that  they  he  carried  out 
in  their  full  severity.  Indeed  the  innocent  may  often  be 
made  to  suffer  instead  of  the  guilty;  for  an  enenyy  is  within 
his  rights  when  he  seizes  and  punishes  the  leading  men  of 
a district  because  he  is  unable  to  discover  the  perpetrators 
of  offences  against  him  which  have  been  committed  within 
it.  Every  citizen  of  an  invaded  province  can  be  either  a 
combatant  or  a non-combatant;  but  he  cannot  combine  the 
characteristics  of  both.  If  he  elects  to  fight,  he  must  join 
the  armed  forces  of  his  country,  in  which  case  he  will  be 
entitled  to  receive  the  treatment  accorded  to  soldiers.  If 
he  prefers  to  be  a peaceful  civilian,  he  must  go  about  his 
ordinary  business  and  refrain  from  interference  in  the  strug- 
gle. The  enemy  will  then  be  obliged  to  protect  him  from 
outrage  and  plunder  on  the  part  of  the  invading  army. 
But  if  he  varies  peaceful  pursuits  with  occasional  acts  of 
hostility,  he  does  so  at  the  peril  of  his  life. 


346 


THE  LAWS  OF  WAR 


§ 198. 

The  next  point  to  notice  with  regard  to  the  treatment  of 
non-combatants  is  that 

The  inhabitants  of  captured  towns  are  not  to  he  abandoned  to 
the  violence  of  the  victorious  soldiery. 

Such  atrocities  as  the  sack  of  Magdeburg  in  1631,  when 
thirty  thousand  people  — men,  women  and  children  — were 
The  diminution  of  massacred  with  every  circumstance  of  cruelty 
dieted  upon'8  by  Tilly’s  troops  amidst  the  wreck  of  their 

the  inhabitants  n . . 

of  captured  towns,  burning  homes,  would  be  impossible  to-day  m 
warfare  between  civilized  states.  The  last  European  in- 
stance of  the  indiscriminate  slaughter  of  garrison  and  people 
is  to  be  found  in  the  capture  of  Ismail  by  the  Russians  in 
1790.  But  scenes  not  greatly  inferior  in  horror  have  occurred 
since;  and  strong  measures  are  still  needed  to  bring  the 
provisions  of  military  codes  up  to  the  level  of  common  justice 
and  humanity  in  these  matters.  During  the  Peninsula  War, 
the  successful  assaults  on  Cuidad  Rodrigo,  Badajos,  and  San 
Sebastian  were  followed  by  terrible  excesses  perpetrated  by 
a maddened  soldiery  upon  the  defenceless  inhabitants.  The 
French  in  1837  sacked  Constantine  in  Algeria  for  three  days. 
After  the  recapture  of  Delhi  in  1857  the  English  officers  were 
able  to  save  most  of  the  women  and  children  of  the  muti- 
neers, but  many  of  the  male  inhabitants  of  the  place  were 
killed  along  with  those  of  the  garrison  who  did  not  succeed 
in  escaping.  The  invariable  excuse  put  forth  on  these  occa- 
sions is  that  the  troops  cannot  be  restrained.  This  may 
possibly  be  true  of  savage  or  semi-barbarous  soldiers,  whose 
employment  on  such  a service,  though  not  forbidden  by 
International  Law,  is  a disgrace  to  civilized  warfare.  But 
it  is  not  true  of  armies  recruited  from  the  populations  of  the 
leading  nations  of  the  world,  Avho  pride  themselves  upon 
their  humanity  and  enlightenment.  It  may  be  granted  that 
of  all  the  tasks  which  fall  to  a soldier’s  lot  none  is  more 


WITH  REGARD  TO  ENEMY  PERSONS. 


347 


likely  to  obliterate  the  man  and  awaken  the  brute  in  him 
than  the  storm  of  a well-defended  fortress.  In  one  awful 
struggle  at  the  breach  are  concentrated  all  the  horrors  of  an 
extended  battle-field,  and  those  who  survive  the  assault  are 
apt  to  rage  like  wild  beasts  among  the  unfortunate  inhabit- 
ants. But  they  can  be  recalled  as  soon  as  the  town  is  gained, 
and  their  places  supplied  by  fresh  divisions;  or,  if  this  is 
impossible,  a body  of  military  police  might  follow  the 
storming  columns  and  sternly  repress  attempts  at  theft  or 
massacre.  The  plea  that  the  soldier  must  be  rewarded  for 
his  exertions  by  the  plunder  of  the  captured  place  is  simply 
infamous.  Undoubtedly  the  service  is  one  of  exceptional 
danger;  but  a promise  of  money  payments,  decorations  and 
promotions  would  be  amply  sufficient  to  evoke  the  full 
courage  and  enthusiasm  of  the  storming  party.1  If  the 
fulfilment  of  this  promise  was  made  conditional  upon  good 
behavior,  and  it  was  understood  that  plunderers  would  be 
put  in  irons,  and  ravishers  and  murderers  shot,  there  would 
be  little  to  complain  of  in  the  conduct  of  the  troops. 

Fortunately  the  great  advances  made  in  the  art  of  fortifica- 
tion since  the  beginning  of  the  present  century,  and  the 
vastly  increased  power  of  modern  artillery  and  small  arms, 
have  greatly  reduced  the  chances  of  the  repetition  in  strug- 
gles between  civilized  states  of  such  scenes  as  have  tainted 
with  disgrace  some  of  the  ‘most  heroic  achievements  of 
comparatively  recent  warfare.  Towns  are  now  defended  by 
forts  and  earthworks  erected  at  a considerable  distance  from 
them.  There  is  therefore  but  little  danger  of  the  rush  of  an 
infuriated  soldiery  into  the  streets  after  a successful  assault. 
In  the  last  great  war  in  which  European  states  were  engaged 
— the  war  of  1877-1878  between  Russia  and  Turkey  — Kars 
was  the  only  fortress  taken  by  storm,  and  after  its  capture 
there  was  no  wild  scene  of  rapine  and  murder.  In  the 
American  Civil  War  Richmond  fell  as  soon  as  the  lines  of 
Lee  were  pierced  at  Petersburg;  and  before  the  soldiers  of 
1 Napier,  Peninsula  War , VI.,  217. 


348 


THE  LAWS  OF  WAR 


the  Union  could  reach  the  city  the  Confederates  had  time 
to  evacuate  it,  after  setting  tire  to  the  government  stores 
and  thus  causing  the  destruction  which  their  victorious  foes 
endeavored  to  prevent.  And  while  both  the  temptations  to 
excess  and  the  opportunities  for  it  are  less  than  before,  the 
sentiments  which  have  caused  the  general  improvement  in 
the  laws*  of  war  have  not  left  untouched  the  department  of 
them  which  deals  with  sieges  and  assaults.  The  Brussels 
Conference  of  1874  laid  down  that  “A  town  taken  by  storm 
shall  not  be  given  up  to  the  victorious  troops  to  plunder;”1 
and  we  may  be  allowed  to  hope  that  the  military  codes  of  all 
civilized  states  will  soon  make  such  proceedings  penal. 

§ 194. 

The  last  point  to  notice  in  connection  with  non-combatants 
is  that 

Special  protection  is  granted  to  those  who  tend  the  sick  and 

wounded. 

This  was  the  work  of  the  Geneva  Convention  of  1864.  Till 
then  it  was  doubtful  whether  army  surgeons  captured  by 
The  special  pro-  the  enemy  would  be  held  as  prisoners  of  war. 
to  those  who  In  the  eighteenth  century  they  were  captured, 

tend  the  sick  1 ..  , . , 

and  wounded.  but  on  an  exchange  were  returned  without 
equivalent  or  ransom.  In  the’  present  century  practice  has 
not  been  uniform  and  text-writers  have  been  unable  to  agree. 
The  Instructions  issued  to  the  armies  of  the  United  States 
in  the  American  Civil  War  forbade  their  detention  unless 
the  captors  had  need  of  their  services.  But  the  Geneva 
Convention  went  further  and  neutralized  them  altogether, 
along  with  nurses,  chaplains,  and  all  attendants  upon  the 
sick  and  wounded.2  They  may  not,  therefore,  be  held  as 
prisoners  of  war;  and  though  they  are  expected  to  remain 
and  care  for  those  who  were  under  their  charge  when  taken 

1 British  State  Papers,  Miscellaneous , No.  1 (1875),  p.  321. 

2 See  § 188. 


WITH  REGARD  TO  ENEMY  PERSONS. 


349 


by  the  enemy,  they  are  free  to  depart  at  any  moment.  The 
Convention  contains  further  stipulations  in  favor  of  inhabit- 
ants of  an  occupied  district  who  receive  the  sick  and  wounded 
into  their  houses  and  tend  them  there.  No  troops  are  to  be 
quartered  upon  them,  and  they  are  to  be  indulgently  treated 
in  the  matter  of  war  contributions.  The  Additional  Articles 
of  1868  imposed  upon  the  staff  of  a captured  hospital  or 
ambulance  the  obligation  of  remaining  with  those  under 
their  care  till  their  services  were  no  longer  needed,  and 
qualified  to  some  extent  the  absolute  immunity  from  the 
quartering  of  troops  granted  by  the  original  convention  to 
houses  where  wounded  men  were  cared  for.  But  as  these 
supplementary  provisions  have  not  been  ratified  by  the  con- 
tracting parties,  they  can  hardly  be  considered  binding, 
though  no  doubt  some  of  them  will  be  acted  upon  from 
motives  of  humanity  in  future  wars  between  civilized 
powers.1 

1 Treaties  of  the  United  States , pp.  1150-1156. 


CHAPTER  IV. 


THE  LAWS  OF  WAK  WITH  REGARD  TO  ENEMY  PROPERTY 

ON  LAND. 

§ 195. 

Under  the  above  head  we  will  first  consider  the  case  of 

Enemy  property  found  within  a state  at  the  outbreak  of  war. 

Such  property  may  belong  to  the  enemy  state  or  to  its  sub- 
jects. The  first  case  is  exceedingly  unlikely  to  arise ; for  a 
Property  of  the  state  does  not  in  its  corporate  capacity  own  real 

enemy  government  . . ...  , , .,  . , -£ 

found  within  n property  in  its  neighbors  territories,  and  it  it 

state  at  the  out-  1 . 

break  of  war.  should  possess  personal  property  so  situated,  it 
would  take  care  to  withdraw  any  of  its  goods  and  chattels 
that  were  in  the  power  of  a probable  foe  as  soon  as  relations 
became  so  strained  that  war  was  likely  to  break  out.  It  is, 
however,  just  possible  that  the  commencement  of  hostilities 
might  find  public  ships,  or  treasure,  or  arms  and  military 
stores  belonging  to  one  belligerent,  still  remaining  within 
the  territories  of  the  other.  In  that  case  they  would  un- 
doubtedly be  confiscated ; but  such  things  as  hooks,  pictures, 
statues,  curios  and  ancient  manuscripts  would  probably  be 
regarded  as  exempt  from  the  operations  of  warfare  and 
restored  accordingly. 

§ 196. 

At  the  outbreak  of  war  a state  frequently  discovers  within 
its  borders  a considerable  amount  of  private  property  belong- 
ing to  subjects  of  the  enemy.  In  dealing  with  such  a case 

360 


THE  LAWS  OF  WAR. 


351 


we  shall  find  it  convenient  to  give  separate  consideration 
to  real  and  personal  property,  and  to  take  first  the  case  of 
real  property  or  immovables.  The  mediaeval  Real  property  of 

. enemy  subjects 

rule  was  to  confiscate  such  property  as  soon  as  found  within  a 

....  . . . state  at  the  out- 

hostilities  began,  and  not  till  the  commencement  break  of  war. 
of  the  eighteenth  century  do  we  find  germs  of  the  contrary 
practice.  In  1713,  at  the  Peace  of  Utrecht,  France,  Savoy, 
the  Netherlands  and  the  Empire  covenanted  to  restore  to 
enemy  subjects  all  immovables  confiscated  during  the  war. 
Opinion  and  practice  moved  rapidly  in  the  direction  of 
lenience,  and  by  the  middle  of  the  century  Vattel1  was 
able  to  limit  the  right  of  a belligerent  to  the  sequestration 
during  the  war  of  the  income  derived  from  such  lands  and 
houses  within  his  territory  as  belonged  to  subjects  of  the 
hostile  state.  During  the  latter  half  of  the  last  century 
general  custom  followed  the  rule  indicated  by  the  great 
French  publicist;  but  towards  the  close  of  it  we  find  in 
treaties  of  peace  provisions  for  the  removal  of  the  sequestra- 
tions, a sure  sign  that  even  the  less  severe  mode  of  dealing 
with  the  property  in  question  was  beginning  to  be  condemned 
by  enlightened  opinion.  The  growth  of  the  practice  of 
allowing  enemy  subjects  resident  in  a country  to  continue 
there  unmolested  during  the  war2  carried  with  it  permission 
for  them  to  retain  their  property ; and  in  modern  times  the 
real  property  of  enemy  subjects  has  not  been  interfered  with 
by  the  belligerent  states  in  whose  territory  it  was  situated, 
even  when  the  owners  resided  in  their  own  or  neutral  states, 
the  one  exception  being  an  Act  of  the  Confederate  Congress 
passed  in  1861  for  the  appropriation  of  all  enemy  property 
found  within  the  Confederacy,  except  public  stocks  and  secu- 
rities.3 This  proceeding  was  deemed  unwarrantably  severe, 
and  contrary  usage  has  been  so  uniform  that  we  may  safely 
regard  the  old  right  to  confiscate  or  sequestrate  as  having 
become  obsolete  through  disuse. 

1 Droit  des  Gens , III.,  v.,  § 76.  2 See  § 184. 

3 Halleck,  International  Law  (Baker’s  ed.),  I.,  489,  note. 


352 


THE  LAWS  OF  WAR 


§ 197. 

Personal  property  or  movables  remained  subject  to  con- 
fiscation if  found  in  an  enemy’s  country  at  the  outbreak  of 
Personal  property  war  for  some  time  after  mitigations  of  the  old 
found  within  a seventy  began  to  be  applied  in  the  case  ot  real 

state  at  the  out-  ° . 

break  of  war.  property.  But  we  find  indications  ot  a change 

of  sentiment  in  numerous  treaties  negotiated  during  the 
eighteenth  century,  whereby  each  of  the  contracting  parties 
agreed  to  grant  to  subjects  of  the  other  a fixed  period  for 
tne  withdrawal  of  mercantile  property,  should  war  break  out 
between  them.  These  stipulations  have  been  followed  by 
others  extending  up  to  the  present  time.  They  mark  a 
considerable  advance ; but  some  of  them  refer  only  to  mov- 
ables connected  with  commerce,  and  leave  other  kinds  of 
personal  property  unprotected.  Moreover  till  the  end  of 
the  Napoleonic  wars  the  mediaeval  rule  of  confiscation  was 
often  applied  in  the  absence  of  special  stipulations  overrid- 
ing it.  But  it  was  too  severe  for  public  opinion;  and  in 
the  treaties  of  the  time  there  are  a number  of  provisions 
for  mutual  restoration  at  the  conclusion  of  peace.  Since 
the  Treaties  of  Vienna  of  1815  the  only  instance  of  confisca- 
tion is  to  be  found  in  the  Act  of  the  Confederate  Congress 
alluded  to  in  the  previous  section. 

This  being  the  state  of  the  facts,  what  are  we  to  say  as 
to  the  state  of  the  law?  The  doctrine  of  the  British  and 
American  courts,  that  war  renders  confiscable  enemy  prop- 
erty found  within  the  state  at  the  outbreak  of  war,  but  does 
not  ipso  facto  confiscate  it,  was  regarded  as  correct  at  the 
beginning  of  the  present  century.  It  was  laid  down  by  the 
Supreme  Court  in  the  case  of  Brown  v.  the  United  States 
when  it  was  further  decided  that  by  the  Constitution  an  Act 
of  Congress  was  necessary  to  effect  confiscation,  whereas  in 
Great  Britain  a Royal  Proclamation  was  sufficient.  But  it 
may  be  questioned  whether  the  old  law  is  still  in  existence. 

1 Cranch,  Reports  of  U.  S.  Supreme  Court , VIII.,  110 


WITH  REGARD  TO  ENEMY  PROPERTY  ON  LAND.  353 


For  nearly  a century  it  has  not  been  acted  upon,  save  in  the 
one  instance  of  1861;  and  the  circumstances  under  which 
this  solitary  return  to  former  severity  took  place  deprive  it 
of  much  weight  as  a precedent  for  international  action. 
What  is  done  by  the  weaker  party  in  a bitter  civil  war  is 
hardly  a guide  for  ordinary  belligerents  in  a struggle  between 
independent  states.  If  we  are  right  in  arguing  from  the 
practice  of  nations  to  the  law  of  nations,  we  shall  hardly  be 
wrong  in  asserting  that  the  general  usage  of  civilized  powers 
extending  over  a period  of  eighty  years  is  sufficient  to  justify 
us  in  regarding  the  contrary  usage  of  a previous  period  as 
no  longer  a sufficient  foundation  for  a rule  which  will  have 
authority  to-day.  The  most  conservative  estimate  of  the 
situation  compels  us  to  say  that  the  right  to  confiscate  under 
the  circumstances  we  have  been  considering  is  rapidly  coming 
to  an  end,  if  it  has  not  already  ceased  to  exist. 

An  attempt  made  early  in  the  present  century  by  the 
British  Court  of  King’s  Bench  to  set  up  a distinction 
between  private  debts  and  other  kinds  of  personal  property, 
and  to  enforce  with  regard  to  the  former  a rule  of  non-con- 
fiscation while  the  latter  remained  subject  to  belligerent 
seizure,  demands  careful  examination.  In  1807  war  broke 
out  between  Great  Britain  and  Denmark,  and  Danish  ships 
and  goods  found  in  British  ports  were  seized  to  the  value 
of  £1,265,000.  The  Danish  Government  retaliated  by  a 
similar  confiscation,  which  included  all  debts  due  from 
Danish  to  British  subjects,  the  total  sum  thus  obtained 
being  about  £250,000.  After  the  restoration  of  peace  an 
English  merchant,  named  Wolff,  sued  his  Danish  debtor, 
Oxholm,  for  a sum  of  money  due  to  him  before  hostilities 
commenced.  The  defence  was  that  the  money  had  been 
paid  into  the  Danish  royal  exchequer  in  obedience  to  an 
order  of  Sept.  9,  1807.  But  Lord  Ellenborough,  then  Chief 
Justice,  decided  against  its  validity  in  1817,  and  gave  judg- 
ment for  the  plaintiff  on  the  ground  that  private  debts  were 
contracted  under  the  protection  of  the  laws  and  therefore 


354 


THE  LAWS  OF  WAR 


were  not  liable  to  confiscation.1  It  is  difficult  to  see  in 
what  way  the  public  faith  is  specially  pledged  to  the  repay- 
ment of  private  debts.  It  is  true  that  creditors  of  one 
nationality  allow  payment  for  goods  supplied  to  debtors  of 
another  nationality  to  be  deferred,  because  the  law  of  the 
latter  gives  them  a remedy  in  case  of  non-payment.  But  it 
is  equally  true  that  ships  of  one  country  venture  to  trade  in 
the  ports  of  another  country,  because  the  law  of  the  latter 
protects  and  encourages  their  commerce.  In  both  cases  the 
business  concerned  is  carried  on  subject  to  the  risks  of  war. 
What  these  are  we  have  to  discover  from  extraneous  sources 
of  information.  They  cannot  be  inferred  from  the  nature  of 
the  transactions.  As  Hall  points  out,2  Lord  Ellenborough 
was  mistaken  in  supposing  that  the  ordinance  of  the  King 
of  Denmark  was  unprecedented  “for  something  more  than 
a century.”  There  had  been  several  recent  examples  of  the 
confiscation  at  the  commencement  of  a war  of  private  debts 
due  to  enemy  subjects  as  well  as  other  kinds  of  personalty. 
Incorporeal  property,  with  the  single  exception  to  be  men- 
tioned in  the  next  section,  was  under  no  special  protection ; 
and  the  decision  in  favor  of  its  exemption  was  unsupported 
by  history.  No  further  attempt  has  been  made  to  draw  an 
untenable  distinction.  At  the  time  when  the  Court  of 
King’s  Bench  gave  its  decision  both  kinds  of  property  were 
subject  to  confiscation.  At  the  present  time  both  are  either 
free  from  hostile  seizure  altogether,  or  in  process  of  becom- 
ing so  very  soon.  But  though,  in  the  absence  of  any 
state  act  confiscating  private  debts  due  to  subjects  of 
the  enemy,  the  right  to  demand  them  is  not  destroyed, 
it  is  suspended  during  the  war.  An  enemy  subject  has 
no  locus  standi  in  the  courts  of  a belligerent  state.  He 
cannot,  therefore,  bring  any  action  for  payment  while  hos- 
tilities last,  but  his  right  to  do  so  revives  at  the  con- 
clusion of  peace. 

1 Maule  and  Selwyn,  King's  Bench  Reports,  VI.,  92. 

2 International  Law,  438,  note. 


WITH  REGARD  TO  ENEMY  PROPERTY  ON  LAND.  355 


§ 198. 

There  is  one  kind  of  personal  and  incorporeal  property 
which  is  clearly  exempt  from  confiscation.  There  can  be  no 
doubt  that  long  usage  and  a due  regard  for  self-  The  gpecial  case 
interest  compel  belligerent  states  to  refrain  enlmyksub]fctLn 
from  confiscating  the  stock  held  by  subjects  of  the  publlc  iiebt‘ 
the  enemy  in  their  public  loans,  and  to  pay  the  covenanted 
interest  on  such  stock  during  the  continuance  of  the  war. 
The  question  came  up  for  discussion  during  the  famous 
Silesian  Loan  Controversy1  between  Great  Britain  and  Prus- 
sia in  the  middle  of  the  eighteenth  century.  In  the  year 
1752  Frederick  the  Great  of  Prussia  confiscated  funds  due 
to  British  subjects  in  respect  of  a loan  secured  upon  the 
revenues  of  Silesia.  The  money  had  been  originally  lent 
to  the  Emperor,  Charles  VI. ; but  when  Silesia  was  ceded 
to  Prussia  in  1742  by  Maria  Theresa,  his  successor  in  the 
Austrian  dominions,  Frederick  agreed  to  take  upon  himself 
all  the  obligations  connected  with  the  loan.  Ten  years  after 
he  laid  hands  upon  the  property  of  the  British  stockholders, 
in  retaliation  for  the  capture  and  condemnation  by  Great 
Britain  of  neutral  Prussian  merchantmen  under  circum- 
stances deemed  unlawful  by  the  jurists  whom  he  consulted. 
The  British  government  replied  to  their  arguments  in  a 
masterly  state  paper,  due  chiefly  to  the  pen  of  Murray,  the 
Solicitor  General,  who  was  afterwards  the  great  Lord  Mans- 
field. “It  will  not  be  easy,”  ran  the  document,  “to  find  an 
instance  when  a prince  has  thought  fit  to  make  reprisals 
upon  a debt  due  from  himself  to  private  men.”  And  then, 
after  pointing  out  the  essential  injustice  of  such  a proceed- 
ing, and  invoking  public  faith  against  confiscation  “because 
a prince  cannot  be  compelled,  like  other  men,  in  an  adverse 
way  in  a court  of  justice,”  it  went  on  to  show  that  by 
international  usage  the  much  stronger  provocation  of  actual 
war  did  not  justify  reclamations  upon  the  public  debt  in  the 
1 C.  de  Martens,  Causes  Celebres , II.,  1. 


356 


THE  LAWS  OF  WAR 


words,  “ So  scrupulously  did  England,  France  and  Spain 
adhere  to  this  public  faith  that  even  during  the  war  (i.e.  the 
war  terminated  by  the  Peace  of  Aix-la-Chapelle  in  1748) 
they  suffered  no  inquiry  to  be  made  whether  any  part  of  the 
public  debt  was  due  to  subjects  of  the  enemy,  though  it  is 
certain  that  many  English  had  money  in  the  French  funds 
and  many  French  had  money  in  ours.”  On  this  and  other 
points  raised  during  the  controversy  the  British  argument 
is  generally  admitted  to  have  been  triumphant.  The  asser- 
tion of  the  Prussian  jurists  that  by  the  common  law  of 
nations,  as  it  stood  at  that  time,  the  goods  of  enemies  were 
free  from  seizure  when  found  in  neutral  vessels  and  the 
goods  of  neutrals  laden  on  board  enemy  vessels  were  not 
liable  to  capture  and  condemnation,  was  as  baseless  as  their 
attempt  to  prove  that  reprisals  might  be  made  upon  stock  in 
the  public  debt  held  by  subjects  of  the  offending  country. 
Undoubtedly  Prussia  had  a real,  though  small,  grievance 
against  Great  Britain;  for  British  Prize  Courts  had  con- 
demned Prussian  vessels  carrying  materials  for  ship-building, 
though  the  British  Minister  for  Foreign  Affairs  had  declared 
to  the  Prussian  Envoy  that  such  cargoes  would  not  be 
regarded  as  contraband.1  The  controversy  was  settled  in 
1756  by  the  Treaty  of  Westminster,  whereby  Prussia  agreed 
to  remove  the  sequestration  placed  upon  the  Silesian  Loan, 
and  Great  Britain  covenanted  to  pay  an  indemnity  of  £ 20, 000 
for  the  benefit  of  Prussian  subjects  who  had  suffered  wrong- 
fully by  her  captures.  The  unbroken  practice  of  civilized 
states  for  generations  past,  and  the  unanimous  voice  of 
statesmen  and  jurists,  render  the  principle  that  stock  in  the 
public  debt  held  by  enemy  subjects  should  be  exempt  from 
seizure,  an  undoubted  rule  of  modern  International  Law. 
We  may  go  further,  and  say  that  the  interest  on  such  stock 
must  be  paid  even  while  the  war  is  going  on.  The  real 
reason  for  the  rule  is  probably  to  be  sought  rather  in  the 
exigencies  of  public  credit  than  in  the  sanctities  of  public 
1 Manning,  Law  of  Nations  (Amos’s  ed.),  294. 


WITH  REGARD  TO  ENEMY  PROPERTY  ON  LAND.  357 


faith.  It  is  difficult  to  see  how  the  obligations  undertaken 
by  a state  with  regard  to  the  money  it  has  borrowed  are  more 
sacred  than  its  other  obligations  towards  private  individuals. 
But  there  is  no  difficulty  in  understanding  that  the  rate  of 
interest  on  a loan  which  might  be  confiscated  in  the  event 
of  war  between  the  borrowing  country  and  the  country  of 
the  lender  would  be  very  much  higher  than  the  rate  on  an 
unconfiscable  stock.  States  desire  to  borrow  on  as  easy 
terms  as  possible,  and  therefore  they  are  glad  to  give  lenders 
the  benefit  of  the  most  complete  security. 

§ 199. 

Having  dealt  with  the  various  kinds  of  enemy  property 
found  within  a belligerent  state  at  the  outbreak  of  war,  we 
now  pass  on  to  consider  the  treatment  to  be' 
accorded  by  an  army  to  movables  and  im- 
movables under  its  control,  if  they  are  tainted  with  the 
enemy  character.  In  this  connection  we  will  deal  first  with 

Booty , 

which  may  be  described  as  private  movables  taken  from  the 
foe  in  the  course  of  such  warlike  operations  on  land  as  the 
capture  of  a camp  or  the  storming  of  a fort.  Booty  must 
be  distinguished  from  contributions  and  requisitions,  which 
are  a sort  of  extraordinary  taxation  levied  by  military  author- 
ity on  occupied  districts.  By  the  strict  rules  of  International 
Law  it  belongs  to  the  state  whose  soldiers  have  captured  it. 
They  are  acting  as  the  agents  and  instruments  of  their  gov- 
ernment. What  they  do  is  done  by  its  authority,  and  what 
they  acquire  is  acquired  on  its  behalf.  War  gives  them  no 
right  to  enrich  themselves  at  the  expense  of  the  enemy. 
The  spoil  they  take  is  not  theirs  but  their  country’s.  This 
was  the  ancient  Roman  theory,  and  it  is  the  theory  of  the 
modern  law  of  nations.  But  in  practice  the  regard  paid 
to  it  is  by  no  means  as  strict  as  could  be  wished,  and  it  is 


358 


THE  LAWS  OF  WAR 


impossible  to  prevent  the  appropriation  of  many  articles 
taken  as  spoil  of  Avar.  Recognizing  this,  the  laws  of  every 
civilized  state  provide  that  the  whole  or  a part  of  the 
captured  property  should  be  given  to  the  captors  according 
to  a scale  draAvn  up  by  the  proper  authorities.  In  England 
the  distribution  of  Booty  is  determined  by  the  Crown  under 
the  advice  of  the  Lords  of  the  Treasury.  In  the  United 
States  it  appears  to  be  held  that,  in  the  absence  of  any  act 
of  Congress  dealing  Avith  the  matter,  the  President,  as  Com- 
mander-in-chief, has  poAver  to  regulate  it.1  In  order  that 
proprietary  rights  in  Booty  may  vest  in  the  state  Avhose 
soldiers  capture  it,  they  must  have  had  it  in  firm  possession 
for  twenty-four  hours.  If  it  is  recaptured  by  the  enemy 
before  that  time  it  reverts  to  the  original  owners,  on  the 
theory  that  they  have  not  been  dispossessed  of  their  propri- 
etary rights  in  it.  State  property,  such  as  arms,  stores  and 
munitions  of  war,  found  in  a captured  camp  or  fort,  or  on 
a battle-field,  belongs  to  the  government  of  the  victors. 


§ 200. 

We  have  next  to  investigate  the  important  subject  of 
Belligerent  occupation. 

The  rights  gained  thereby  are  so  numerous  and  far-reaching 
that  it  is  necessary  to  define  Avith  great  care  the  exact  circum- 
stances which  call  them  into  existence.  Much 
tion  historically  light  Avill  be  thrown  upon  the  question  by  a 
short  historical  revieAv  of  the  methods  followed 
by  invading  armies  when  dealing  Avith  property  in  the  dis- 
tricts overrun  by  them. 

It  is  not  to  be  supposed  that  in  ancient  and  mediaeval 
Avarfare  property  would  be  spared  where  life  was  freely  taken. 
Accordingly  Ave  find  unlimited  plunder  and  destruction  the 
rule  not  only  in  classical  times,  but  also  in  periods  far  more 
1 Halleck,  International  Law  (Baker’s  ed.),  II.,  117-123. 


WITH  REGARD  TO  ENEMY  PROPERTY  ON  LAND.  359 


nearly  approaching  our  own.  When  the  English  under 
Edward  III.  landed  in  Normandy  in  1346,  they  spread  them- 
selves over  the  country,  burning  and  plundering  up  to  the 
very  gates  of  Paris.  In  the  wars  of  the  Armagnacs  and 
Burgundians  in  France  so  terrible  was  the  devastation  that 
hungry  wolves  battled  for  food  in  the  streets  of  the  capital. 
The  French  invasions  of  Italy  at  the  end  of  the  fifteenth  and 
the  beginning  of  the  sixteenth  centuries  were  undertaken 
without  magazines  or  money.  The  troops  lived  on  the 
country,  which  they  ate  up  like  locusts.  The  atrocities  of 
the  Thirty  Years’  War  are  too  well  known  to  need  descrip- 
tion. The  phrase,  to  plunder  after  the  German  fashion, 
became  a proverb.  So  terrible  was  the  famine  caused  by 
the  war  that  in  some  districts  bands  of  men  and  women 
took  to  the  woods  and  lived  by  cannibalism.  While  Gus- 
tavus  Adolphus  lived  the  Swedish  troops  were  restrained 
from  pillage,  but  after  his  death  in  1632  they  gradually  lost 
their  former  discipline  and  became  as  great  adepts  in  plunder 
and  torture  as  the  Imperialists.1  Even  Grotius  was  obliged 
to  admit  that  “by  the  Law  of  Nations  . . . any  one  in  a 
regular  war  may,  without  limit  or  measure,  take  and  appro- 
priate what  belongs  to  the  enemy.”2  But  when  he  endeav- 
ored to  enforce  temperamenta  belli , he  argued  that  even  in 
a just  war  men  should  not  capture  more  than  was  necessary 
for  their  own  safety,  unless  it  was  morally  due  to  them 
either  as  a debt  or  by  way  of  punishment.  He  added  that 
the  injured  side,  if  it  abounds  in  wealth,  should  not  exact 
the  utmost  farthing,  and  spoke  with  approval  of  the  custom 
of  sparing  the  lands  of  cultivators  and  the  goods  of  mer- 
chants, and  only  taking  tribute  from  them.3  Rules  based 
upon  the  notion  that  war  is  a punishment  have  not  found 
their  way  into  International  Law;  but  the  other  idea  of 

1 Bernard,  Growth  of  the  Laws  of  War  in  the  Oxford  Essays  for  1856, 
pp.  97-101. 

2 De  Jure  Belli  ac  Pads,  III.,  VI.,  ii 

3 Ibid.,  III.,  XII.,  XIII. 


360 


THE  LAWS  OF  WAR 


Grotius  that  the  invader  should  measure  his  acquisitions 
by  his  necessities  was  fruitful  of  good.  In  the  next  great 
cycle  of  European  wars  Marlborough  and  Eugene  and  their 
French  opponents  kept  strict  discipline  in  their  armies. 
Requisitions  took  the  place  of  indiscriminate  plunder,  and 
the  avocations  of  peaceful  life  went  on  amidst  the  movements 
of  the  contending  forces.  Now  and  again  the  old  ferocity 
broke  out.  The  Palatinate  was  devastated  in  1688  by  the 
orders  of  Louis  XIV.  and  his  minister,  Louvois;  and  in 
1704  Marlborough  ordered  a part  of  Bavaria  to  be  laid  waste, 
in  order  to  punish  the  Elector  for  adhering  to  the  French 
alliance  and  induce  him  to  quit  it.  But  proceedings  such 
as  these  shocked  the  conscience  of  Europe,  even  when  the 
memory  of  Mansfeld  and  Wallenstein  was  still  fresh.1  They 
have  not  passed  altogether  unimitated  in  some  recent  wars, 
though  the  worst  devastations  of  modern  times  do  not 
approach  in  destructive  cruelty  to  those  of  only  two  cen- 
turies ago.  It  is  now  the  undoubted  rule  that  pillage  must 
be  strictly  forbidden,  and  humane  generals  not  only  forbid 
it  but  inflict  severe  punishment  upon  those  who  disobey 
their  order.  When  Wellington  entered  France  in  1813  he 
found  that  his  prohibitions  of  plundering  were  too  often 
disregarded.  He  therefore  threatened  to  send  back  the 
Spanish  troops  if  they  persisted  in  their  attempt  to  wreak 
vengeance  on  the  French  peasants  for  the  atrocities  com- 
mitted in  Spain  by  the  armies  of  Napoleon.  With  his  own 
troops  he  was  still  more  severe.  He  sent  to  England  under 
arrest  several  officers  who  had  been  guilty  of  marauding, 
and  hanged  private  soldiers  who  plundered  in  defiance  of 
his  orders.2  In  doing  this  he  did  no  more  than  is  now 
usually  done  by  civilized  commanders.  General  Scott  in 
the  Mexican  War  and  General  Grant  in  the  War  of  Secession 
did  their  best  to  restrain  their  troops  from  pillaging;  and 

1 Bernard,  Growth  of  Laws  of  War , 101-104 ; Hosack,  Law  of  Nations, 
260,  261. 

2 Napier,  Peninsula  War,  VI.,  268. 


WITH  REGARD  TO  ENEMY  PROPERTY  ON  LAND.  361 


by  the  Instructions  for  the  Government  of  Armies  of  the 
United  States  in  the  Field,  published  in  1863,  “all  robbery, 
all  pillage  or  sacking,  even  after  taking  a place  by  main 
force,  . . . are  prohibited  under  the  penalty  of  death.”1 
The  rules  drawn  up  by  the  Brussels  Conference  of  1874  2 and 
the  Code  agreed  to  by  the  Institut  de  Droit  International  in 
1880 3 agree  in  prohibiting  pillage.  But  though  promis- 
cuous plunder  is  strictly  forbidden  to  unauthorized  soldiers, 
it  is  never  entirely  absent,  and  the  most  careful  and  humane 
of  generals  finds  himself  unable  to  give  absolute  protection 
to  the  property  of  the  inhabitants  of  an  invaded  country, 
especially  when  he  is  at  the  head  of  a large  army  in  whose 
ranks  are  sure  to  be  found  a considerable  number  of  bad 
characters.  War  at  the  best  is  a terrible  business,  and 
those  who  enter  upon  it  without  absolute  necessity,  or 
clamor  for  it  in  mere  lightness  of  heart,  take  upon  them- 
selves a fearful  responsibility.  It  is  possible,  however,  by 
the  use  of  proper  precautions  and  severe  punishments  to 
reduce  pillage  to  a minimum;  and  self-respecting  states 
should  see  that  their  armies  are  under  proper  regulations  in 
this  as  in  other  matters. 

But  it  must  not  be  supposed  that  the  absence  of  pillage 
means  absolute  security  for  enemy  property.  An  invading 
general  may  purchase  in  the  ordinary  way  provisions  and 
other  articles  required  for  the  consumption  of  his  soldiers, 
or  he  may  take  them  at  prices  fixed  by  himself,  or  he  may 
compel  the  inhabitants  to  furnish  them  without  payment 
and,  if  they  refuse,  send  out  detachments  to  collect  them. 
The  last  course  was  taken  by  the  French  commanders  in  the 
Napoleonic  Wars  and  by  the  Germans  when  they  invaded 
France  in  1870-1871.  It  is  the  course  usually  followed  by 
the  armies  of  Continental  Europe,  and  was  adopted  by  the 
generals  of  the  United  States  in  their  invasions  of  the  South 

1 Davis,  Outlines  of  International  Law , Appendix  A. 

2 British  State  Papers,  Miscellaneous,  No.  1 {1875'),  p.  323. 

3 Tableau  General  de  L'Institut  de  Droit  International , p.  183. 


362 


THE  LAWS  OF  WAR 


during  the  great  Civil  War.  Great  Britain  pays  as  a rule 
for  all  goods  supplied  to  her  soldiers  by  the  people  of  the 
enemy’s  territory.  Wellington  purchased  the  supplies  he 
did  not  carry  with  him  when  he  overran  Southern  France 
in  1813  and  1814,  and  General  Scott  followed  this  example 
during  the  invasion  of  Mexico  by  the  forces  of  the  United 
States  in  1846  and  1847. 1 In  the  Crimean  War  the  British 
bargained  with  the  country  people  for  what  they  bought, 
but  the  French  fixed  their  own  prices.2  It  seems  then  that, 
though  private  pillage  is  forbidden  by  the  military  codes 
of  all  civilized  nations,  war  may  nevertheless  be  made  very 
burdensome  to  the  inhabitants  of  an  invaded  country.  In 
fact  the  superior  humanity  of  land  warfare  exists  more  in 
name  than  in  reality.  Private  property  may  still  be  cap- 
tured at  sea;  on  land  it  is  exempt  from  seizure.  There  is 
a sharp  contrast  in  the  rules  so  far  as  words  are  concerned. 
But  if  we  leave  expressions  and  deal  with  facts,  we  shall 
find  that  a country  may  be  swept  bare  of  supplies  to  feed 
the  soldiers  who  hold  it  down  by  hostile  force.  Peasants 
may  be  impressed  to  drive  their  own  carts  for  the  invaders. 
The  produce  of  the  farmer,  the  stock  of  the  trader,  the  stores 
of  the  merchant,  may  go  to  fill  the  magazines  of  the  enemy; 
and  the  slightest  attempt  on  the  part  of  the  population  to 
aid  their  fatherland  by  active  means  may  expose  them  to 
all  the  horrors  of  military  execution.  It  is  true  that  the 
individual  soldier  is  not  allowed  to  plunder  at  his  pleasure, 
but  neither  is  the  individual  sailor.  The  capture  of  a mer- 
chantman is  as  regular  and  orderly  a proceeding  as  the  levy 
of  a requisition  upon  a country  town.  In  both  cases  private 
property  is  taken,  but  taken  by  disciplined  agents  of  the 
enemy  state  acting  under  public  authority.  If  there  be  any 
moral  superiority,  it  is  on  the  side  of  the  maritime  transac- 
tion ; for  a boat’s  crew  engaged  in  the  search  and  capture  of 
a trading-vessel  can  be  kept  under  more  complete  supervision 

1 Halleck,  International  Law  (Baker’s  ed.),  II.,  111-113  and  note. 

2 Bernard,  Growth  of  the  Laws  of  War , p.  109,  note. 


WITH  REGARD  TO  ENEMY  PROPERTY  ON  LAND.  368 

than  a foraging  party  engaged  in  taking  grain  and  stock 
from  a country  village;  and,  moreover,  the  presence  of 
women  and  children  in  the  one  case  and  their  absence  in 
the  other,  suggest  considerations  which  certainly  do  not 
favor  the  claim  of  superior  humanity  made  on  behalf  of  land 
warfare. 

§ 201. 

Since  the  rights  of  an  invader  towards  the  country  overrun 
by  him  are  so  large  and  important,  it  is  necessary  first  to 
define  the  circumstances  under  which  he  obtains 
them,  and  then  to  discuss  their  exact  nature  and  belligerent  occu- 
limits.  Originally  no  distinction  was  drawn  in 
these  respects  between  the  conqueror  of  a territory  and  its 
temporary  holder.  Military  possession  was  regarded  as  a 
sort  of  conquest,  giving  proprietary  rights  to  the  invader 
as  long  as  he  could  maintain  his  possession.  The  practical 
result  of  this  view  was  to  confer  on  him  all  the  power  of  a 
sovereign  without  a sovereign’s  responsibility.  The  theory 
seems  to  have  been  acted  upon  down  to  the  middle  of  the 
eighteenth  century.  In  1712  the  King  of  Denmark,  being 
at  war  with  Sweden  and  in  belligerent  occupation  of  the 
Swedish  possessions  of  Bremen  and  Verden,  sold  them  before 
the  war  was  over  to  the  Elector  of  Hanover,1  thus  assuming 
to  himself  when  a mere  occupant  such  a right  of  dominion 
as,  according  to  modern  usage,  could  spring  from  nothing 
but  cession  or  completed  conquest.  Later  still,  during  the 
occupation  of  Saxony  by  Frederick  the  Great  in  1756,  recruits 
were  taken  for  the  Prussian  army  from  the  population  of  the 
occupied  kingdom.2  This  was  by  no  means  the  only  instance 
of  the  treatment  of  the  inhabitants  of  invaded  districts  as  if 
they  were  subjects  of  the  invading  state.  The  history  of 
the  time  contains  several  others,  and  though  few,  if  any, 
are  found  much  later  than  the  period  we  are  considering,  the 
theory  on  which  they  were  based  retained  enough  vitality 

1 Hall,  International  Law , § 154. 


2 Ibid. 


364 


THE  LAWS  OF  WAR 


to  cause  the  Brussels  Conference  of  1874  to  embody  in  its 
Code  the  statement  that  the  population  of  an  occupied  terri- 
tory cannot  be  compelled  either  to  take  part  in  military 
operations  against  their  own  country,  or  to  swear  allegiance 
to  the  enemy’s  power.1  Yattel,  writing  in  1758,  was  the 
first  jurist  to  scout  the  theory  that  a military  possessor  might 
perform  acts  of  sovereignty,  and  to  maintain  instead  that  the 
rights  of  the  original  sovereign  must  first  be  ousted  by  a 
completed  conquest  or  resigned  by  a definite  treaty.2  His 
views  gradually  influenced  practice.  Old  customs  that  were 
inconsistent  with  them  died  out,  and  new  doctrines  were 
founded  on  improved  usage.  A sharp  distinction  is  now 
drawn  between  completed  conquest  and  belligerent  occupa- 
tion. The  former  we  have  already  considered,3  and  with  the 
rights  conferred  by  it  the  Laws  of  War  have  no  concern. 
It  implies  the  cessation  of  the  struggle  and  the  establishment 
of  a new  political  order.  The  chief  questions  of  Interna- 
tional Law  connected  with  it  were  referred  to  when  we  dealt 
with  the  problems  of  state  existence.4  But  the  rights  of 
occupanc}r  concern  us  very  nearly.  They  are  incidents  of 
hostilities,  and  amount  to  a temporary  supercession  of  the 
authority  of  an  invaded  state,  to  an  extent  rendered  necessary 
in  order  to  reconcile  the  exigencies  of  the  invaders  with  the 
safety  and  good  order  of  the  inhabitants  of  the  occupied 
districts.5 

As  consequences  of  such  vast  importance  flow  from  occu- 
pation, we  must  endeavor  to  obtain  a clear  understanding 
of  its  nature.  It  is  necessary  therefore  to  ask,  What  is 
an  occupied  district?  Under  what  circumstances  does  an 
enemj-  possess  the  powers  of  an  occupying  belligerent? 
These  are  most  important  questions.  Upon  the  answers  to 
them  depends  the  right  of  an  invader  to  levy  contributions 
and  requisitions,  to  press  the  inhabitants  into  his  service  for 

1 British  State  Papers,  Miscellaneous , No.  1 (1875),  Arts.  36  and  37, 

p.  323.  2 Droit  des  Gens,  III.,  § 198. 

3 See  § 98.  4 See  § 45.  6 Acollas,  Droit  de  la  Guerre,  pp.  61,  62. 


WITH  REGARD  TO  ENEMY  PROPERTY  ON  LAND.  365 


certain  purposes,  and  to  subject  them  to  military  execution 
for  aiding  their  own  side.  It  is  obviously  the  interest  of 
the  great  military  powers  to  acquire  these  rights  upon  the 
most  easy  terms,  and  to  stretch  them  as  far  as  possible  when 
acquired;  and  it  is  equally  clear  that  the  smaller  states 
must  adopt  the  opposite  policy,  since  they  cannot  keep  up 
vast  standing  armies,  but  are  compelled  to  rely  upon  the 
patriotism  and  spontaneous  activity  of  their  inhabitants  for 
adequate  resistance  to  invasion.  This  conflict  of  views  showed 
itself  very  clearly  at  the  Brussels  Conference  of  1874.  All 
the  delegates  agreed  that  territory  through  which  an  invading 
army  has  marched  and  over  which  it  maintains  its  lines  of 
communication  is  occupied  by  it.  But  differences  of  opinion 
arose  as  to  territory  in  advance  of  the  main  army  and  on  its 
flanks,  and  also  as  to  territory  won  back  temporarily  by 
local  resistance  to  the  invader.  In  the  war  of  1870  between 
Germany  and  France,  the  German  military  authorities  had 
adopted  the  view  which  Napoleon  acted  upon  at  the  begin- 
ning of  the  century.  They  held  that  a district  was  occupied 
if  flying  columns,  advanced  parties,  and  even  scouts  and 
patrols,  marched  through  it  either  without  resistance  or  after 
having  overcome  the  resistance  of  the  regularly  organized 
national  troops.  It  was  also  part  of  their  theory  that,  apart 
from  voluntary  evacuation,  occupation  came  to  an  end  only 
when  the  invaders  were  expelled  by  the  regular  army  of  their 
enemy.  The  German  delegates  at  the  Conference  endeavored 
to  enforce  these  views,  but  they  were  strenuously  resisted 
by  the  delegates  of  the  smaller  states  of  Europe ; 1 and  in 
the  end  it  was  agreed  that  the  first  Article  of  the  proposed 
Code  should  run  as  follows : “ A territory  is  considered  as 
occupied  when  it  is  actually  placed  under  the  authority  of 
the  hostile  army.  The  occupation  only  extends  to  those 
territories  where  this  authority  is  established  and  can  be 
exercised.” 2 These  words  might  perhaps  be  more  explicit, 

1 British  State  Papers,  Miscellaneous,  No.  1 (1875),  pp.  235-239. 

2 Ibid.,  p.  320. 


366 


THE  LAWS  OF  WAR 


but  they  certainly  exclude  what  may  be  called  constructive 
occupation,  and  confine  the  rights  of  the  invader  to  the 
districts  dominated  by  his  military  force.  The  phraseology 
of  the  Manual  adopted  by  the  Institute  of  International  Law 
in  1880  is  clearer.  In  Article  41  it  declares  that  a territory 
is  occupied  when  “the  state  from  which  it  has  been  taken 
has  ceased  in  part  to  exercise  there  its  regular  authority,  and 
the  invading  state  alone  finds  itself  able  to  maintain  order 
therein.”1  In  fact  occupation  in  land  warfare  is  strictly 
analogous  to  blockade  in  sea  warfare;  and  as  blockades  are 
not  recognized  unless  they  are  effective,  so  occupation  should 
be  made  to  rest  upon  effective  control.  Its  rights  are  founded 
on  mere  force,  and  therefore  they  cannot  extend  beyond  the 
area  of  available  force.  But  the  force  need  not  be  actually 
on  the  spot.  The  country  embraced  within  the  invader’s 
lines  may  be  very  extensive,  and  the  bulk  of  his  troops  will, 
of  course,  be  found  on  its  outer  edge  opposing  the  armies  of 
the  invaded  state.  Any  territory  covered  by  the  front  of 
the  invaders  should  be  held  to  be  occupied,  but  not  territory 
far  in  advance  of  their  main  bodies.  The  fact  that  it  is 
penetrated  here  and  there  by  scouts  and  advance  guards 
does  not  bring  it  under  firm  control,  and  therefore  cannot 
support  a claim  to  have  deprived  the  invaded  state  of  all 
authority  therein.  But  the  rights  of  occupancy,  once 
acquired,  remain  until  the  occupier  is  completely  dispos- 
sessed. The  temporary  success  of  a raid  or  a popular  rising 
will  not  destroy  them ; but  if  an  insurrection  wins  back  the 
disputed  territory,  it  is  absurd  to  hold  that  they  still  exist 
because  the  occupying  forces  have  not  been  driven  away  by 
regular  troops.  Rights  founded  on  force  expire  when  that 
force  is  overcome,  no  matter  what  the  agency  employed  in 
overcoming  it.  It  is  impossible  to  travel  with  safety  far 
beyond  the  statement  that  belligerent  occupation  implies, 
first  firm  possession,  so  that  the  occupying  power  has  the 
country  under  its  control  and  can  exercise  its  will  therein, 

1 Tableau  General  de  L'Institut  de  Droit  International , p.  181. 


WITH  REGARD  TO  ENEMY  PROPERTY  ON  LAND.  367 


and  secondly  a continuance  of  the  status  of  belligerency, 
so  that  the  invader  has  neither  evacuated  the  territory  he 
held  nor  become  its  sovereign. 


§ 202. 

We  will  now  proceed  to  discuss  the  rights  of  an  invader 
over  property  found  in  the  districts  occupied 
by  him.  It  wdll  be  convenient  to  distinguish  property  pained 

, ° by  occupation. 

between  state  property  and  private  property, 
taking  first  in  each  case  the  rules  which  relate  to  immov- 
ables, and  secondly  those  which  relate  to  movables. 

With  regard  to  immovables  belonging  to  the  invaded 
state,  it  is  now  settled  law  that  the  occupying  belligerent 
shall  “consider  itself  in  the  light  of  an  administrator  and 
usufructuary”  only.1  It  may  use  the  public  lands,  build- 
ings, forests,  and  other  real  estate,  and  may  take  all  the 
rents  and  profits  arising  from  them.  The  troops  of  the 
invader  may  be  quartered  in  public  buildings,  his  adminis- 
trative services  may  utilize  them  for  offices,  they  may  be 
turned  into  hospitals  for  his  wounded,  and  even  the  churches 
may  be  taken  possession  of  for  purposes  connected  with  the 
war.  But  wanton  destruction  is  now  regarded  as  an  act  of 
barbarity  forbidden  by  the  rules  of  civilized  warfare.  When, 
in  1814,  the  British  burned  the  Capitol  and  the  White  House 
at  Washington  on  the  occasion  of  their  temporary  military 
occupation  of  the  city,  they  brought  upon  themselves  the 
reprobation  not  only  of  American  statesmen  and  writers,  but 
also  of  the  publicists  of  the  civilized  world.  The  act  was 
condemned  next  year  by  Sir  James  Mackintosh  in  the  House 
of  Commons.  The  only  serious  argument  in  its  defence 
urges  that  it  was  done  in  retaliation  for  the  burning  of  Cana- 
dian villages  by  the  American  forces  in  181 3. 2 Undoubtedly 

1 Brussels  Code,  Art.  7,  see  British  State  Papers,  Miscellaneous,  No.  1 
(1875),  p.  320. 

2 Maine,  International  Law , 198-199. 


368 


THE  LAWS  OF  WAR 


Newark,  Saint  David’s,  and  a few  other  settlements  were 
destroyed,  and  to  that  extent  real  provocation  was  given. 
But  it  is  alleged  that  orders  were  misunderstood  or  disobeyed 
by  the  troops  concerned,  and  it  is  certain  that  the  govern- 
ment of  the  United  States  had  not  refused  to  make  reparation. 
The  least  that  can  be  said  of  the  British  proceedings  is  that 
the  punishment  was  out  of  all  proportion  to  the  offence. 
Even  Napoleon,  who  made  war  with  an  unscrupulousness 
shared  by  few  great  generals  of  modern  times,  respected  the 
public  buildings  of  the  capitals  he  occupied.1  All  the  mod- 
ern Manuals  and  Military  Codes  forbid  wilful  damage  to  the 
real  property  of  the  enemy  state  in  districts  which  pass 
under  the  power  of  an  invader,  and  it  is  not  likely  that  this 
prohibition  will  be  disregarded  in  future  warfare  between 
civilized  powers.  It  does  not,  however,  apply  absolutely  to 
the  public  edifices  of  a place  which  is  defended  against  the 
attacks  of  an  enemy.  Those  of  them  which  are  used  for 
military  purposes  must  take  the  risks  of  war.  They  may 
be  injured  or  destroyed  by  bombardment,  or  in  any  other 
way.  But  hospitals  and  buildings  “devoted  to  religion, 
arts,  sciences  and  charity  ” should  be  spared  as  far  as  pos- 
sible. It  is  the  duty  of  the  defender  to  indicate  them  by 
visible  signs  and  to  refrain  from  using  them  for  warlike 
purposes.2 

The  rule  that  an  invader  acquires,  not  the  ownership,  but 
only  the  right  to  use  the  public  immovables  he  finds  in  the 
occupied  territory,  carries  with  it  as  a necessary  consequence 
the  further  rule  that  he  may  not  sell  any  portion  of  the  state 
domain  which  he  succeeds  in  bringing  under  his  control. 
He  may  compel  the  tenants  to  pay  their  rents  into  his  mili- 
tary chest,  he  may  lop  the  forests  and  work  the  mines,  he 
may  appropriate  to  himself  all  ordinary  profits;  but  he  may 
not  injure  or  destroy  the  corpus  of  the  property  in  ques- 
tion, nor  may  he  attempt  to  transfer  it.  Whatever  may  be 

1 Wharton,  International  Law  of  the  United  States,  §§  318,  349. 

2 Brussels  Code,  Arts.  16-18. 


WIT  FT  REGARD  TO  ENEMY  PROPERTY  ON  LAND.  369 


expressed  on  the  face  of  any  document,  he  can  but  make 
over  his  own  chance  of  retaining  by  a good  title  what  he 
now  holds  by  the  sword.  Such  a transaction  would  not  be 
valid  against  the  sovereign  of  the  country,  if  his  authority 
were  restored  during  or  after  the  war,  but  it  would  bind  the 
occupying  sovereign  if  he  afterwards  obtained  the  district 
by  cession  or  completed  conquest.  Purchase  during  the  war 
by  a neutral  state  amounts  to  an  abandonment  of  neutrality, 
which  the  dispossessed  belligerent  may  lawfully  resent  by 
any  means  known  to  International  Law.  If  the  excluded 
sovereign  sells,  he  simply  parts  with  his  chance  of  regaining 
the  property,  and  the  conveyance,  though  valid  as  against 
him,  would  have  no  force  to  bind  the  invading  state  should 
its  occupation  ripen  into  full  ownership.  Even  its  right 
of  user  is  subject  to  exceptions,  for  the  income  derived  from 
lands  set  apart  for  the  support  of  “establishments  devoted 
to  religion,  charity,  education,  arts  and  sciences  ” should 
not  be  diverted  from  its  beneficent  purposes  to  swell  the 
resources  of  the  occupying  army.1 

With  certain  exceptions,  movables  belonging  to  the  invaded 
state  may  be  appropriated  by  the  invader.  By  the  laws  of 
war  firm  possession  gives  him  a title  to  the  things  them- 
selves, and  not  merely  to  the  use  of  them.  This  rule  applies 
not  only  to  instruments  and  munitions  of  war,  means  of 
transport,  and  military  stores  and  supplies,  but  also  to  the 
taxes,  the  funds  and  marketable  securities  of  the  state,  and, 
in  short,  to  all  its  revenues  except  any  that  may  have  been 
pledged  before  the  war  for  the  satisfaction  of  neutral  cred- 
itors. The  expenses  of  administration  in  the  occupied  dis- 
tricts should  be  the  first  charge  upon  the  revenues  received 
from  them,  and  the  local  officials  should  be  retained  if  they 
are  willing  to  act;  but  the  invader  may  appropriate  any 
surplus  that  remains  after  order  and  efficient  government 
have  been  provided  for.  Legal  documents  and  state  archives 
are  exempt  from  confiscation,  the  former  as  being  useless 


1 Bi'ussels  Code,  Art.  8. 


370 


THE  LAWS  OF  WAR 


for  belligerent  purposes  but  important  for  the  definition  of 
private  rights,  and  the  latter  as  being  possessed  of  a purely 
historical  value.  Modern  usage  extends  the  practice  of 
exemption  to  objects  exclusively  useful  for  scientific  and 
humane  purposes,  libraries  and  works  of  art.  About  these 
last  a great  controversy  arose  after  the  final  downfall  of  the 
first  Napoleon.  During  the  wars  of  the  revolutionary  period, 
and  especially  during  the  Italian  campaigns  of  1796  and  the 
following  year,  the  French  had  carried  off  a large  number  of 
artistic  masterpieces  from  other  countries  and  deposited 
them  in  the  Louvre  at  Paris.  In  1815  the  victorious  allies 
insisted  on  the  restitution  of  these  works  of  art  to  the  cities 
and  galleries  from  which  they  had  been  taken,  and  ever  since 
publicists  have  been  divided  in  opinion  upon  the  legality 
and  policy  of  the  act.  Halleck  sums  up  the  case  in  the 
words,  “We  think  the  impartial  judge  must  conclude,  either 
that  such  works  of  art  are  legitimate  trophies  of  war,  or  that 
the  conduct  of  the  allied  powers  in  1815  was  in  direct  viola- 
tion of  the  law  of  nations.”1  His  argument  proceeds  upon 
the  assumption  that  the  pictures,  marbles  and  bronzes  in 
question  were  regarded  by  the  various  sovereigns  as  spoil 
which  had  come  into  their  hands  by  the  occupation  of  the 
capital  of  their  foe.  But  this  is  an  entirely  mistaken  view. 
The  theory  of  the  allies  was  that  the  captures  were  void 
ab  initio,  and  that  when  the  superior  force  of  the  captor  was 
overcome  the  true  owners  came  into  possession  again.  They 
regarded  themselves  simply  as  undoers  of  the  wrong  France 
had  done.2  The  question  resolves  itself  into  an  examination 
of  the  lawfulness  of  the  original  seizures.  And  in  dealing 
with  this  it  is  necessary  to  bring  out  in  bold  relief  a fact 
which  Sir  Samuel  Romilly  emphasized  in  his  famous  speech 
on  the  Peace  of  Vienna  in  the  House  of  Commons  on  Febru- 
ary 16,  1816. 3 His  remarks  have  been  quoted  again  and 

1 International  Law , Ch.  XXI.,  § 10. 

2 Note  of  Lord  Castlereagli  quoted  by  Wheaton,  International  Law , 

§ 352-353.  8 Hansard,  XXXII.,  759,  760. 


WITH  REGARD  TO  ENEMY  PROPERTY  ON  LAND.  371 

again,  but  few  writers  on  the  subject  appreciate  their  full 
significance.  He  points  out  that  many  of  the  masterpieces 
under  consideration  had  not  been  seized  as  spoil  of  war,  but 
had  become  the  property  of  the  French  state  by  the  provisions 
of  various  treaties  negotiated  with  their  original  owners. 
Though  Sir  Henry  Maine  takes  note  of  this  distinction,  he 
does  not  seem  to  see  its  bearing  upon  the  solution  of  the 
legal  problem,  and,  following  the  example  of  other  writers, 
deals  with  the  restitutions  in  the  mass  instead  of  in  detail.1 
His  conclusion  that  the  allies  followed  the  rule  of  reprisal 
is  not  borne  out  by  the  facts  of  the  case;  for  they  confined 
their  operations  to  the  works  of  art  taken  by  the  French 
from  other  countries,  and  scrupulously  refrained  from  laying 
hands  on  anything  of  the  kind  which  had  belonged  to  France 
before  she  started  on  her  career  of  conquest.  Clearly  it  is 
impossible  to  treat  what  had  been  acquired  by  virtue  of 
belligerent  occupation  only,  as  on  the  same  legal  footing 
with  what  had  been  obtained  by  cession,  such  as  the  hundred 
pictures  which  were  part  of  the  price  paid  by  the  Pope  for 
a truce  and  armistice  in  June,  1796,  or  the  bronze  horses 
which  Venice  surrendered  by  a secret  article  of  the  treaty 
of  May,  1797. 2 It  is  absurd  to  argue  that  a victorious 
belligerent  may  lawfully  enforce  the  transfer  of  a province, 
but  not  a picture,  or  that  peace  may  be  purchased  by  an 
indemnity  of  millions,  but  not  by  mosaics  and  marbles. 
What  France  had  acquired  in  this  way  she  held  by  a title 
known  to  International  Law.  To  take  it  away  from  her  was 
no  act  of  police  jurisdiction,  but  a high-handed  proceeding 
which  must  rest  for  its  justification  upon  considerations  of 
public  policy.  The  welfare  of  the  world  demanded  that  she 
should  be  deprived  of  Belgium  and  the  Rhenish  provinces. 
It  might  also  demand  that  the  galleries  of  the  Louvre  should 
disgorge  the  accumulated  glories  of  the  art  of  Western 
Europe.  But  in  each  case  the  cession  was  a forced  transfer 

1 Maine,  International  Law , pp.  197,  198. 

2 Fyffe,  Modern  Europe , I.,  118,  132. 


372 


THE  LAWS  OF  WAR 


to  the  conquerors  of  what  was  legally  the  property  of  the 
conquered.  Possibly  the  conditions  imposed  by  the  victo- 
rious sovereigns  were  wise  and  just.  We  must  judge  them 
as  we  would  the  terms  of  any  other  peace ; but  we  cannot  say 
that  in  the  matter  of  the  restoration  of  the  ceded  pictures 
they  enforced  the  restitution  of  property  unlawfully  in  the 
possession  of  the  vanquished.  Very  different  considerations, 
however,  apply  to  the  works  of  art  which  had  never  been  the 
subjects  of  any  legal  transfer,  but  were  taken  by  the  French 
during  their  belligerent  occupation  of  territories  they  had 
overrun.  This  was  sheer  robbery.  The  laws  of  war  then, 
as  now,  protected  the  contents  of  galleries  and  museums 
from  seizure  and  confiscation.1  Frederick  the  Great  of 
Prussia  made  war  with  terrible  severity,  yet  even  he  had 
been  content  with  copies  of  the  famous  Dresden  masterpieces. 
The  French  had  introduced  a new  and  barbarous  practice 
into  European  warfare,  and  when  they  were  made  to  refund 
their  ill-gotten  artistic  gains,  a useful  lesson  was  read  to  all 
who  might  in  future  be  disposed  to  imitate  them. 

§ 203. 

We  now  come  to  the  rights  of  the  occupying  state  over 
private  property  in  the  occupied  districts.  Dealing  first 

with  immovables,  we  may  lay  down  that  as  a 

Rights  over  private  11,1  , i -it.  1 

property  gained  general  rule  they  may  not  be  seized  or  destroyed, 

by  occupation.  , , . - , 

nor  may  they  be  used  except  so  far  as  the  neces- 
sities of  war  compel.  The  profits  arising  from  them  are  to 
be  free  from  confiscation,  and  the  inhabitants  are  to  be 
unmolested  in  all  lawful  use  of  them.  Immovable  property 
is  bound  up  with  the  territory.  As  soon,  therefore,  as  men 
recognized  that  invasion  and  temporary  possession  were 
widely  different  from  completed  conquest,  it  was  clear  that 
an  invader  could  not  acquire  a firm  title  to  lands  and  houses, 
or  sell  a title  to  a purchaser.  Real  property  possessed  by 
1 Acollas,  Droit  de  la  Guerre,  p.  63, 


WITH  REGARD  TO  ENEMY  PROPERTY  ON  LAND.  373 


private  persons  is  held  to  be  incapable  of  appropriation  by 
an  occupying  belligerent;  but  the  pressing  and  immediate 
needs  of  warfare  may  justify  the  destruction  of  buildings 
or  their  seizure  for  use  as  a fortified  post.  Troops  may  be 
quartered  in  private  houses,  though  the  inhabitants  may  not 
be  forcibly  ejected  from  their  homes  to  make  more  room  for 
the  soldiers.  But  if  non-combatants  fire  upon  the  invading 
forces  from  their  dwellings,  or  use  them  for  the  purpose  of 
committing  other  acts  of  unauthorized  hostility,  the  laws  of 
war  give  to  the  belligerent  who  suffers  the  right  to  inflict 
punishment  by  the  destruction  of  the  property  in  question, 
as  well  as  by  severities  against  the  persons  of  the  offenders. 
In  warfare  between  civilized  states  it  is  found  that,  as  a rule, 
nothing  worse  than  temporary  and  severe  inconvenience  is 
experienced  by  those  of  the  inhabitants  of  occupied  districts 
who  remain  in  their  homes.  They  are  able  to  take  some  care 
of  their  property,  and  can  generally  prevent  wanton  damage 
and  destruction  by  promptly  reporting  any  excesses  to  the 
officers  in  command.  But  those  who  abandon  their  dwellings 
and  take  to  flight  at  the  approach  of  the  enemy  are  likely 
to  find  on  their  return  little  but  the  mere  shell  remaining. 
The  houses  will  have  been  filled  with  soldiers  from  basement 
to  garret,  and  their  furniture  and  fittings  will  probably  have 
been  first  subjected  to  the  roughest  treatment  and  then  burnt 
for  firewood.  Unless  there  is  any  reason  to  anticipate  per- 
sonal violence,  the  best  policy  for  the  inhabitants  in  case  of 
invasion  is  to  stay  at  home  and  keep  watch  over  their  prop- 
erty. It  can  hardly  escape  diminution  by  means  of  requisi- 
tions and  other  exactions,  but  there  can  be  no  reason  in  the 
nature  of  things,  and  there  is  certainly  none  in  the  laws  of 
war,  why  it  should  be  destroyed. 

The  movables  belonging  to  the  non-combatant  population 
of  occupied  districts  may  not  be  seized  unless  they  are  of 
immediate  use  in  war.  Such  things  as  arms  and  ammunition 
are  subject  to  confiscation  even  when  they  are  the  property 
of  private  individuals,  but  ordinary  private  property  of  a 


374 


THE  LAWS  OF  WAR 


personal  nature  is  regarded  as  sacred,  and  a general  ought 
to  exercise  the  greatest  care  to  prevent  his  troops  from 
making  free  with  it.  But  seizure  may  follow  upon  convic- 
tion of  any  offence  against  the  code  laid  down  by  the  invader; 
such,  for  instance,  as  giving  information  to  the  dispossessed 
authorities,  or  harboring  their  agents.  Moreover,  means  of 
communication  belonging  to  private  individuals  may  be 
taken  and  used  by  the  occupying  forces.  At  the  end  of 
the  war,  hoAvever,  they  ought  to  be  restored,  and  it  is  even 
asserted  that  compensation  should  be  paid  to  their  owners. 
The  Brussels  Conference  of  1874  laid  down  this  rule  with 
regard  to  railway  plant,  land  telegraphs,  and  steam  and 
other  vessels  not  included  in  cases  regulated  by  maritime 
law.1 

§ 204. 


Strictly  speaking,  Requisitions  are  articles  of  daily  con- 
sumption and  use  taken  by  an  invading  army  from  the  people 
The  special  case  of  the  occupied  territory,  Contributions  are  sums 
mbutions°andCon  °f  money  exacted  over  and  above  the  taxes,  and 
Fines-  Fines  are  payments  levied  upon  a district  as  a 

punishment  for  some  offence  against  the  invaders  committed 
within  it.  But  the  two  former  terms  are  used  interchange- 
ably in  a loose  and  popular  sense  to  signify  anything,  whether 
in  money  or  in  kind,  demanded  by  an  occupying  force  from 
the  inhabitants  of  the  country  it  has  overrun. 

The  invader  has  an  undoubted  right  to  levy  requisitions 
at  his  own  discretion,  and  in  most  modern  wars  he  has  done 
so,  sometimes  leniently,  sometimes  severely.  When  Bona- 
parte entered  Italy  in  1796,  he  marched  with  few  or  no 
supplies  of  his  own,  and  compelled  the  rich  districts  he  sub- 
dued to  feed  and  clothe  his  hungry  and  ragged  regiments.2 
Throughout  his  career  he  endeavored,  with  marked  success, 
to  act  upon  the  principle  of  making  each  war  support  itself. 


1 Brussels  Code , Art.  6. 

2 Fyffe,  Modern  Europe , I.,  116,  117. 


WITH  REGARD  TO  ENEMY  PROPERTY  ON  LAND.  375 


Contributions  as  well  as  requisitions  were  levied  with  ruth- 
less severity  wherever  the  soldiers  of  the  Republic  and  the 
Empire  carried  their  victorious  standards,  till  at  length  a 
French  army  became  as  terrible  a scourge  to  the  people  as 
were  the  feudal  exactions  and  seigniorial  privileges  swept 
away  in  consequence  of  its  successes.  France  suffered 
through  the  constant  drain  upon  its  best  blood  to  fill  the 
gaps  in  Napoleon’s  ranks,  and  by  the  restrictions  upon  trade 
due  to  the  Continental  system,  but  till  the  last  defensive 
struggle  little  of  its  wealth  was  directly  taken  for  the 
expenses  of  constant  warfare.  The  usual  plan  is  to  regard 
requisitions  as  a supplementary  resource,  and  not  as  the 
main  support  of  the  invaders.  In  modern  wars  civilized 
armies  have  carried  with  them  vast  trains  of  provisions  and 
other  supplies,  but  even  when  thus  provided,  their  exactions 
have  sometimes  been  enormous.  Baker,  in  his  edition  of 
Halleek,1  gives  a list  of  the  daily  supplies  requisitioned 
by  the  Germans  when  they  occupied  Versailles  during  the 
siege  of  Paris  in  the  winter  of  1870-1871.  They  required, 


120,000  loaves, 


7.000  lbs.  of  roasted  coffee, 

4.000  lbs.  of  salt, 

20,000  litres  of  wine, 


80.000  lbs.  of  meat, 

90.000  lbs.  of  oats, 

27.000  lbs.  of  rice, 


500,000  cigars. 


In  other  portions  of  the  field  of  hostilities  similar  demands 
were  made,  and  sometimes  the  French  armies  were  obliged 
to  levy  requisitions  upon  their  own  countrymen.  It  is 
calculated  that  in  a war  which  lasted  only  six  months  the 
occupied  districts  of  France  were  mulct  in  goods  of  all 
kinds  to  the  extent  of  about  $80,000,000  or  £ 16, 000, 000. 
Facts  like  these  should  be  remembered  by  those  who  are 
inclined  to  attach  much  weight  to  the  assertion  that  war- 
fare on  land  is  less  destructive  and  more  merciful  than 
warfare  at  sea. 


1 International  Law,  II.,  Ill,  note. 


376 


THE  LAWS  OF  WAR 


Recent  military  codes  contain  a number  of  rules  drawn 
up  with  the  object  of  making  the  process  of  levying  requisi- 
tions as  orderly  and  as  little  burdensome  as  possible.1  The 
best  practice  is  for  the  commanders  of  detached  corps  to 
requisition  objects  of  immediate  use,  such  as  food  and  fodder, 
while  the  commander  of  the  whole  army  requisitions  articles 
that  take  some  time  to  supply,  such  as  clothing  and  boots. 
The  demand  is  made  in  writing,  and  receipts  are  given  for 
the  articles  supplied,  in  order  to  afford  proof  to  other  com- 
manders of  the  amount  already  exacted  from  the  place,  and 
to  be  evidence  of  its  losses  in  case  the  government  should 
recoup  the  suffering  districts  out  of  the  general  taxation  of 
the  country.  . The  collection  is  generally  made  through  the 
local  authorities,  and  only  when  they  have  fled,  or  when 
there  is  not  time  to  set  them  in  motion,  are  soldiers  detailed 
to  bring  in  what  is  required.  Requisitions  should  be  pro- 
portioned to  the  needs  of  the  troops  and  the  resources  of  the 
occupied  territory.  In  the  rough  and  ready  processes  of 
actual  warfare  these  rules  are  frequently  broken.  Yet  they 
must  not  be  regarded  as  mere  counsels  of  perfection,  fit  only 
for  some  Utopian  world  in  which  war  remains  as  a strange 
survival  from  a half-forgotten  epoch  of  force  and  ignorance. 
They  can  be  kept  if  commanders  are  determined  men,  and 
soldiers  are  trained  in  habits  of  obedience  and  self-restraint. 
Nearly  five  hundred  years  ago  Henry  V.  of  England  pre- 
vented pillage,  violence  to  unarmed  peasants  and  insults  to 
women,  because  he  did  not  scruple  to  hang  the  Bardolphs 
of  his  army  when  they  indulged  their  predatory  instincts 
in  churches  and  elsewhere.2  What  could  be  done  with  the 
rough  archers  and  men-at-arms  of  mediteval  England  can  be 
done  with  the  civilized  soldiers  of  the  nineteenth  century; 
and  surely  it  is  not  too  much  to  ask  that,  if  war  must  still 
exist  as  the  last  resort  of  nations,  it  shall  be  purged  of  all 
unnecessary  cruelties,  and  be  in  fact  what  it  is  in  name, 

1 e.g.  Brussels  Code , Arts.  40,  42  ; Acollas,  Droit  de  la  Guerre,  pp.  84-86. 

2 Bernard,  Growth  of  the  Laws  of  War,  pp.  98,  99. 


WITH  REGARD  TO  ENEMY  PROPERTY  ON  LAND.  377 

a solemn  trial  of  strength  between  the  public  armed  forces 
of  the  combatants. 

Contributions,  as  distinct  from  requisitions,  ought,  so  said 
the  Brussels  Conference,  to  be  imposed  “ only  on  the  order 
and  on  the  responsibility  of  the  general-in-chief,  or  of  the 
superior  civil  authority  established  by  the  enemy  in  the 
occupied  territory.”1  In  levying  them  the  assessment  in 
use  for  the  purposes  of  ordinary  taxation  should  be  followed 
as  far  as  possible,  and  in  all  cases  receipts  should  be  given. 
On  principle  there  is  little  to  be  said  for  these  exactions 
of  money,  though  they  were  resorted  to  by  Napoleon  to  an 
extent  which  seriously  impoverished  whole  provinces,  and 
have  not  been  altogether  unknown  since  his  time.  We 
cannot  venture  to  say  with  Professor  Acollas  that  they  are 
illegal,2  because  history  testifies  that  they  have  not  been 
banished  from  modern  usage,  and  Military  Codes  drawn  up 
by  men  who  know  from  experience  how  hostilities  are  con- 
ducted recognize  them  as  incidents  of  belligerent  occupation. 
But  the  only  case  in  which  they  are  consistent  with  sound 
principle  is  when  they  are  taken  as  an  equivalent  for  pay- 
ments which  should  have  been  made  in  kind.  They  may 
then  be  regarded  as  based  upon  the  doctrine  that  in  case  of 
necessity  a commander  may  feed  his  troops  from  the  resources 
of  occupied  districts.  In  other  cases  they  have  no  more 
respectable  origin  than  the  old  practice  of  enrichment  by 
plunder.  Pillage  is  still  pillage,  even  though  it  be  reduced 
to  system  and  carried  on  by  rule  and  measure. 

Little  need  be  said  on  the  subject  of  fines.  They  are  levied 
upon  a locality  when  an  offence  against  the  invaders  has 
been  committed  within  it  and  the  guilty  individuals  cannot 
be  discovered.  The  commander  of  an  occupying  force  is 
bound  to  provide  for  the  security  of  his  communications  and 
the  safety  of  his  soldiers.  He  cannot  be  expected  to  take 
no  notice  of  the  slaughter  of  his  sentinels  or  the  cutting  off 

1 Brussels  Code,  Art.  41. 

2 Droit  de  la  Guerre,  pp.  8a,  80,  and  note. 


378 


THE  LAWS  OP  WAR. 


of  his  convoys  by  the  inhabitants  of  a district  which  is  in 
theory  engaged  under  his  protection  in  the  pursuits  of  peace- 
ful industry.  In  all  probability  the  perpetrators  of  these 
deeds  are  high-souled  patriots,  but  none  the  less  must  they 
be  punished  with  extreme  severity,  if  they  are  detected  and 
caught.  If  not,  the  district  itself  must  be  held  responsible, 
and  no  more  humane  method  than  a heavy  fine  can  be  devised 
for  bringing  its  responsibility  home  to  it.1 

1 The  subjects  referred  to  in  the  last  four  sections  are  dealt  with  in 
Manuals  and  Instructions  issued  by  the  governments  of  many  civilized 
powers.  The  Instructions  for  the  Government  of  Armies  of  the  United 
States  in  the  Field  are  printed  in  Baker’s  edition  of  Halleck’s  International 
Law,  II.,  36-51,  and  in  Davis’s  International  Law,  Appendix  A.  The  cor- 
responding British  Code  has  not  been  published,  but  Sir  Henry  Maine  was 
permitted  to  quote  from  it  largely  in  his  International  Law. 


CHAPTER  V. 


THE  LAWS  OF  WAR  WITH  REGARD  TO  ENEMY  PROPERTY 

AT  SEA. 

§ 205. 

As  a rule  enemy  property  at  sea  is  subject  to  capture 
whether  it  be  of  a public  or  a private  character.  But  the 
mere  fact  of  enemy  ownership  is  not  sufficient  The  extent  to 

J _ which  public 

to  render  a vessel  or  its  cargo  liable  to  seizure  vessels  of  the 

° enemy  are  liable 

and  condemnation.  And  though  exceptions  to  to  capture, 
the  rule  of  capture  are  more  frequent  in  the  case  of  goods 
than  in  the  case  of  ships,  in  each  they  are  sufficiently  numer- 
ous to  materially  qualify  the  general  principle.  In  order  to 
deal  with  them  according  to  a definite  plan  we  will  commence 
with  a consideration  of  the  rules  of  warfare  applicable  to 

Public  Vessels  of  the  Enemy. 

Ships  belonging  to  a belligerent  state  may  be  attacked  and 
captured  in  their  own  ports  and  waters,  in  the  ports  and 
waters  of  the  attacking  power,  and  on  the  high  seas.  Only 
in  the  territorial  waters  of  neutral  nations  are  they  exempt 
from  hostile  operations.  But  the  unbroken  usage  of  naval 
warfare  in  modern  times  has  decreed  that  public  vessels 
exclusively  engaged  in  the  work  of  exploration,  discovery 
and  scientific  research,  shall  be  able  to  obtain  from  the 
enemy’s  government  a pass  which  will  protect  them  from 
hostile  seizure  as  long  as  they  take  no  part  in  belligerent 
operations.  During  the  war  of  the  American  Revolution 

379 


380 


THU  LAWS  OF  WAR 


Captain  Cook  pursued  his  discoveries  unmolested  by  the 
French  fleets,  and  the  Austrian  frigate  Novara  was  not 
interrupted  in  its  scientific  expedition  throughout  the  Italian 
conflict  of  1859.  But  care  is  necessary  to  avoid  misunder- 
standings, which  may  lead  to  the  detention  of  the  ship  and 
the  captivity  of  its  crew.  This  fate  befell  Commander 
Flinders  when,  in  1803,  he  put  into  Port  Louis  in  Mauritius 
on  what  he  deemed  was  a perfectly  innocent  return  journey 
after  a voyage  of  exploration  and  survey  along  the  coast  of 
Australia.  He  had  sailed  from  England  with  a passport 
from  the  French  Minister  of  Marine,  and  had  scrupulously 
obeyed  his  instructions  to  “act  in  all  respects  towards  French 
ships  as  if  the  two  countries  were  not  at  war.”  But  at 
Sydney  his  original  vessel,  the  Investigator , had  been  found 
to  be  rotten  and  unseaworthy,  and  he  had  exchanged  her  for 
the  Cumberland , which  was  placed  at  his  disposal  by  the 
Governor  of  New  South  Wales.  The  French  authorities 
at  Mauritius  detained  the  ship  and  all  within  her  on  the 
grounds  that  she  was  not  the  vessel  to  which  a passport  had 
been  given,  and  that  there  were  suspicious  circumstances  con- 
nected with  her  entry  into  Port  Louis.  Flinders  remained 
a prisoner  till  he  was  released  on  parole  in  1810,  and  the 
Cumberland  was  retaken  when  Mauritius  capitulated  to  the 
British  in  the  same  year.1  The  case  shows  the  need  of 
extreme  care  in  carrying  into  effect  arrangements  between 
belligerent  powers.  There  can  be  no  doubt  about  the  prin- 
ciple of  the  exemption  of  expeditions  of  discovery  from  the 
ordinary  operations  of  warfare,  but  its  application  is  not 
always  free  from  difficulty. 

Cartel  ships  are  undoubtedly  exempt  from  belligerent 
capture.  They  are  vessels  employed  in  services  connected 
with  the  exchange  of  prisoners.  In  strictness  each  cartel 
vessel  ought  to  be  provided  with  a pass  from  a Commissary 
of  Prisoners,  but  in  its  absence  strong  evidence  of  bond  fide 
employment  will  save  her  from  detention.  It  is  not  neces- 
i Flinders,  Voyages,  II.,  Chs.  III.-IX. 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA.  381 

sary  that  she  should  have  prisoners  on  board.  She  may  be 
on  a voyage  to  a port  where  she  is  to  take  them  up,  or  on 
a return  voyage  after  having  delivered  them  at  their  desti- 
nation. But  she  must  not  carry  merchandise  or  despatches, 
still  less  must  she  perform  any  hostile  acts.  Belligerents 
may  employ  either  public  or  private  vessels  in  their  cartel 
service;  and  as  the  rule  of  exemption  applies  to  both,  we 
have,  for  the  sake  of  convenience,  considered  the  matter 
here,  where  -we  are  dealing  with  the  immunities  from  hostile 
seizure  accorded  to  public  ships. 

It  is  sometimes  said  that  public  vessels  driven  into  an 
enemy’s  port  by  stress  of  weather,  or  entering  it  in  ignorance 
of  the  outbreak  of  hostilities,  must  be  allowed  to  depart 
unmolested.  There  is,  however,  no  rule  of  International 
Law  to  that  effect,  and  the  history  of  naval  warfare  contains 
instances  of  capture  as  well  as  instances  of  abstention  from 
capture.1  The  truth  seems  to  be  that  if  the  exemption  is 
granted,  it  is  given  as  a matter  of  grace  and  favor,  and  can- 
not be  demanded  as  a right.  And  probably  the  same  may 
be  said  of  hospital  ships.  It  is  exceedingly  likely  that  in 
future  naval  wars  humane  belligerents  will  refrain  from  oper- 
ations directed  against  the  enemy’s  public  vessels  devoted 
entirely  and  exclusively  to  the  care  of  the  sick  and  wounded. 
But  they  are  in  no  way  obliged  to  do  so.  The  additional 
articles  of  the  Geneva  Convention  which  were  signed  in 
1868,  are  not  binding  on  account  of  the  absence  of  ratifica- 
tion ; and  even  if  civilized  powers  were  to  give  their  formal 
adhesion  to  the  stipulations  in  question,  they  would  not 
thereby  pledge  themselves  to  the  neutralization  of  floating 
hospitals;  for  the  clause  of  Article  IX.  which  confers  immu- 
nity from  capture  upon  public  vessels  not  equipped  for 
fighting  and  designated  for  their  humane  purpose  during 
peace,  does  not  occur  in  the  original  French  text,  though 
it  is  found  in  the  English  version.2 

1 Halleck,  International  Law,  Ch.  XXII.,  § 24. 

2 Treaties  of  the  United  States , p.  1155  and  note. 


382 


THE  LAWS  OP  WAR 


§ 206. 

We  will  next  endeavor  to  explain  the  liability  to  capture 
and  condemnation  of  the 

Private  Vessels  of  the  Enemy. 

The  nationality  of  a vessel  is  shown  by  the  flag  she  flies  and 
by  her  certificate  of  registry.  It  is  true  that  a false  flag  may 
The  extent  to  be  hoisted ; but  the  Right  of  Search  is  a protec- 

v esse  is*  of 'the  tion  to  belligerents  against  such  an  obvious 

enemy  are  liable  , . T . i-iriiT 

to  capture.  device,  it  is  also  true  that  by  false  declara- 

tions papers  may  be  obtained  which,  though  perfectly  regular 
and  given  in  good  faith,  secure  for  the  ship  registration  as 
the  property  of  a citizen  of  one  country  while  it  really 
belongs  to  a citizen  of  another.  In  the  case  of  the  Virginius 
the  United  States  held  that  a certificate  of  registry  was  con- 
clusive as  between  a merchantman  searched  by  a foreign 
cruiser  and  the  searching  vessel.  The  government  of  the 
latter  might,  it  was  argued,  impeach  the  validity  of  the 
papers  through  the  ordinary  diplomatic  channels,  but  it 
might  not  presume  to  settle  the  question  for  itself  by  its 
agents  on  the  spot,  and  allow  them  to  act  there  and  then 
upon  the  judgment  they  might  form.1  Whether  or  no  it  is 
possible  to  maintain  this  doctrine  in  its  original  breadth,2 
there  can  be  no  doubt  that  a ship’s  papers,  if  genuine,  are 
conclusive  as  to  its  national  character.  But  even  when  a 
vessel  is  shown  to  belong  to  a neutral  owner,  it  will  be 
treated  as  enemy  property  if  it  uses  habitually  the  flag  and 
pass  of  the  enemy  or  sails  under  a license  given  by  his 
government.  And  the  same  treatment  will  be  meted  out 
by  a belligerent  to  his  own  subjects,  should  their  vessels 
be  found  in  a similar  situation. 

As  a general  rule,  private  vessels  of  the  enemy  may  be 
captured  wherever  they  are  found,  as  long  as  they  are  not  in 

1 Wharton,  International  Law  of  the  United  States,  §§  327,  409. 

2 Hall,  International  Law , § 80. 


WITH  REGARD  TO  EREMY  PROPERTY  AT  SEA.  383 


neutral  waters.  There  are,  however,  certain  exceptions, 
some  of  which  rest  upon  usage  so  constant  and  so  conform- 
able to  the  more  humane  character  of  modern  warfare  that 
we  may  almost  venture  to  say  that  they  are  embodied  in  the 
international  code,  while  others  have  not  progressed  beyond 
the  stage  of  comity,  and  could  be  ignored  by  a belligerent 
state  without  bringing  down  upon  itself  the  charge  of  law- 
lessness. The  exemption  of  fishing-boats  from  capture  is 
a somewhat  debatable  point.  Deep-sea  fishing-vessels  are 
treated  like  other  enemy  ships,  but  a practice  of  allowing 
the  inshore  fishermen  of  both  belligerents  to  pursue  their 
avocations  without  molestation  has  become  very  general. 
France  holds  that  it  is  obligatory.  The  British  doctrine 
that  it  is  a rule  of  comity  only  was  laid  down  by  Lord 
Stowell  in  the  case  of  the  Young  Jacob  and  Joanna.1  The 
United  States,  under  the  influence  of  Franklin,  pledged 
themselves  to  exemption  in  their  treaty  with  Prussia  of 
1785,  and  the  stipulation  to  that  effect  was  renewed  in  1799 
and  again  in  1828. 2 The  difference  between  the  English 
and  the  French  view  is  more  apparent  than  real,  for  no 
civilized  belligerent  would  now  capture  the  boats  of  fisher- 
men plying  their  avocation  peaceably  in  the  territorial  waters 
of  their  own  state,  and  no  jurist  would  seriously  argue  that 
their  immunity  must  be  respected  if  they  were  used  for  war- 
like purposes,  as  were  the  smacks  belonging  to  the  northern 
ports  of  France  when  Great  Britain  gave  the  order  to  capture 
them  in  1800. 

In  the  eighteenth  century  states  frequently  commenced 
hostilities  at  a time  when  their  ports  were  full  of  the  enemy’s 
merchantmen,  which  they  seized  as  the  first  step  in  the  active 
operations  of  warfare.  The  famous  resignation  of  the  elder 
Pitt  in  1761  was  caused  by  his  inability  to  convince  his  col- 
leagues that  Spain  contemplated  war  with  England  and  their 
refusal  to  authorize  the  capture  of  Spanish  vessels  found 

1 Robinson,  Admiralty  Reports , I.,  20. 

2 Treaties  of  the  United  States,  pp.  905,  914,  919. 


384 


THE  LAWS  OF  WAR 


in  British  waters.  But  commercial  interests  and  considera- 
tions of  justice  have  now  become  so  powerful  that  belligerents 
not  only  refrain  from  seizure  in  the  circumstances  we  have 
just  indicated,  but  reverse  their  former  policy  and  give  time 
for  merchant  vessels  of  enemy  nationality  to  leave  their  ports 
after  the  outbreak  of  hostilities.  At  the  beginning  of  the 
Crimean  War  in  1854  a period  of  six  weeks  was  granted  by 
both  sides,  and  in  the  case  of  the  Russian  White  Sea  ports 
the  days  of  grace  were  made  to  date  from  the  opening  of  the 
navigation  at  the  break-up  of  the  ice,  and  not  from  the  com- 
mencement of  hostile  operations.  Moreover,  trading-vessels 
on  their  way  to  enemy  ports  when  the  war  began  were 
allowed  to  enter  and  depart  unmolested  Avithin  the  specified 
time.1  Concessions  of  a like  kind  Avere  made  to  each  other 
by  France  and  Prussia  in  1870,  and  by  Russia  and  Turkey 
in  1877.  It  is  hardly  likely  that  a privilege  of  such  impor- 
tance to  merchants  Avill  be  alloAved  to  drop  out  of  existence 
in  these  days  of  rapidly  increasing  trade,  and  Ave  may  look 
forward  Avith  confidence  to  the  general  adoption  of  the  new 
practice.  Moreover,  it  is  exceedingly  probable  that  private 
vessels  engaged  in  works  of  discovery  or  humanity  would 
not  noAv  be  molested  in  a war  between  civilized  powers. 
The  Additional  Articles  of  the  Geneva  Convention  provide 
for  the  exemption  from  ordinary  capture  of  hospital  ships 
belonging  to  the  recognized  Aid  Societies,  and  even  mer- 
chantmen charged  exclusively  Avith  the  removal  of  the  sick 
and  wounded.  But  a certain  amount  of  belligerent  authority 
may  be  exercised  over  them,  for  those  Avho  receive  attention 
on  board  are  required  not  to  serve  again  during  the  continu- 
ance of  the  war,  and  the  cargoes  of  the  merchant  vessels  may 
be  confiscated  if  they  are  good  prize  by  the  law  of  nations.2 
The  absence  'of  ratification,  however,  makes  it  very  doubtful 
whether  these  Additional  Articles  will  be  observed  in  every 

1 Hertslet,  Treaties,  X.,  503;  Wheaton,  International  Law  (Dana’s  ed.), 
p.  389,  note. 

2 Treaties  of  the  United  States,  pp.  1155,  1156. 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA.  385 


detail,  even  by  powers  who  are  willing  to  grant  immunity 
of  some  kind.  Humanity  and  chivalry  rather  than  legal 
obligation  will  for  some  time  to  come  decide  the  position  of 
the  vessels  referred  to  in  them,  and  also  that  of  private  vessels 
driven  into  an  enemy’s  port  by  stress  of  weather  or  accident 
of  the  sea. 

§ 207. 

Having  dealt  with  enemy  vessels,  we  will  now  proceed  to 
deal  with  the 

Sea-borne  goods  of  the  Enemy. 

The  ancient  rule  was  to  capture  them  not  only  on  board  the 
ship  of  an  enemy,  but  also  on  board  the  ship  of  a neutral. 
In  the  former  case  the  ship  and  cargo  were  good  The  extent  t0 
prize,  in  the  latter  the  cargo  only,  the  ship  being  rreUabie°toScap-Sea 
released  by  the  Prize  Court  and  its  owner  hav-  ture‘ 
ing  freight  granted  to  him  from  the  sale  of  the  condemned 
goods.  Neutral  vessels  were  in  some  cases  condemned,  for 
instance  if  they  were  endeavoring  to  run  a blockade;  but 
when  they  were  engaged  in  ordinary  commerce,  and  the  only 
circumstance  that  led  to  their  detention  was  the  fact  that 
they  carried  merchandise  belonging  to  enemy  owners,  they 
not  only  escaped  condemnation  but  even  received  freight. 
This  was  the  rule  of  the  Consolato  del  Mare,1  and  according 
to  most  English  and  American  authorities  it  remains  the 
rule  of  the  common  law  of  nations.  But  on  this  point,  as 
on  many  others,  a change  is  going  on.  The  old  order  is 
decaying  before  our  eyes,  and  for  those  who  hold  that  the 
usage  of  nations  when  fixed  and  uniform  is  an  unerring 
index  to  their  law,  it  has  become  a serious  question  whether 
the  statements  that  held  good  half  a century  ago  should  not 
be  altered  in  consequence  of  the  changed  practice  of  modern 
times.  For  the  movement  in  favor  of  the  freedom  from 
capture  of  enemy  goods  under  a neutral  flag,  which  began 
1 Pardessus,  Us  et  Coutumes  de  la  Mer,  II.,  292. 


386 


THE  LAWS  OF  WAR 


in  the  seventeenth  century,  gained  a decisive  victory  in 
1856,  when  the  plenipotentiaries  assembled  at  the  Conference 
of  Paris  embodied  the  principle  of  “ Free  Ships,  Free  Goods  ” 
in  the  Declaration  on  Maritime  Law  with  which  they  con- 
cluded their  proceedings.  Since  that  time  the  Declaration 
has  been  accepted  by  nearly  all  civilized  powers,  and  though 
the  United  States  has  held  aloof,  along  with  a few  countries 
of  no  great  importance  in  naval  affairs,  both  sides  in  its  great 
Civil  War  adopted  and  acted  upon  the  doctrine  that  a neutral 
flag  covers  enemy  goods  except  contraband  of  war.  We  have 
then  an  agreement  acceded  to  in  set  terms  nearly  forty  years 
ago  by  the  vast  majority  of  the  members  of  the  family  of 
nations,  and,  in  addition,  the  subsequent  practice  of  all 
powers  in  strict  conformity  with  it,  whether  their  signa- 
tures to  the  great  international  instrument  in  which  it  was 
embodied  have  been  given  or  withheld.  In  the  face  of  facts 
like  these  it  is  difficult  to  argue  that  International  Law  is 
unchanged,  and  that  nothing  more  has  happened  than  mutual 
promises  on  the  part  of  several  states  that  they  will,  in  certain 
contingencies,  substitute  something  else  for  one  of  its  rules. 
On  the  other  hand,  there  seems  equal  difficulty  in  assert- 
ing that  a great  power  like  the  United  States  is  bound  before 
all  the  world  to  act  in  future  maritime  conflicts  upon  a clause 
in  a diplomatic  document  to  which  she  expressly  refused  her 
signature.  In  truth  we  are  passing  through  a transitional 
stage.  The  final  goal  is  clear,  but  it  is  impossible  to  say 
at  any  given  moment  exactly  how  far  we  have  advanced 
in  our  journey  towards  it.  The  Declaration  of  Paris  was 
drawn  up  in  the  interests  of  neutrals  rather  than  bellig- 
erents, and  a full  discussion  of  it  belongs  properly  to  that 
portion  of  our  subject  which  treats  of  the  Law  of  Neutrality. 
It  will  be  found  there  under  its  proper  heads.1  Meanwhile 
we  may  venture  upon  the  assertion  that  for  all  practical 
purposes  the  old  rule  no  longer  applies,  and  that  in  ordinary 
cases,  uncomplicated  by  questions  of  blockade,  contraband 

1 See  §§  265-267. 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA.  387 

or  unneutral  service,  a naval  belligerent  cannot  capture  the 
sea-borne  goods  of  an  enemy  unless  they  are  carried  in  an 
enemy  vessel. 

We  have  already  discussed  the  circumstances  under  which 
the  enemy  character  is  acquired  by  property,  and  the  extent  to 
which,  under  such  circumstances,  the  enemy  taint  extends.1 
We  have  now  to  state  the  exceptions  to  the  rule  that  enemy 
goods  on  enemy  vessels  are  lawful  prize  of  war.  They 
are  very  few  and  by  no  means  free  from  doubt.  In  1812 
the  British  Vice- Admiralty  Court  of  Halifax,  Nova  Scotia, 
restored  to  the  Academy  of  Arts  in  Philadelphia  a cargo 
of  paintings  and  prints  captured  in  their  voyage  from  Italy 
to  the  United  States,  on  the  ground  that  the  arts  and  sciences 
were  the  property  of  mankind  at  large,  and  that  the  practice 
of  all  civilized  countries  was  in  favor  of  their  exemption 
from  the  operations  of  warfare.2  Both  the  history  and  the 
theory  of  this  judgment  are  open  to  criticism,  but  the  decis- 
ion at  which  it  arrives  has  been  approved  by  many  authori- 
ties, and  would  probably  be  followed  by  a Prize  Court  to-day. 
It  is  quite  possible  to  hold  that  articles  which  give  pleasure 
and  instruction  to  innocent  people,  and  can  have  no  possible 
effect  upon  the  fortunes  of  war,  should  be  allowed  to  pass 
freely  into  an  enemy’s  country,  without  assenting  to  debat- 
able propositions  about  communism  in  art  or  abstinence  from 
spoliation  in  warfare.  Hospital  stores  are  another  kind  of 
goods  which  we  may  expect  to  see  exempted  in  some  measure, 
if  not  entirely,  from  capture  in  future  maritime  struggles. 
In  all  probability  they  will  not  be  confiscated  by  a belligerent 
unless  he  is  in  need  of  such  supplies  himself,  and  has  no 
other  means  of  obtaining  them. 

■ § 208. 

Sometimes  when  a vessel  is  captured  the  master  gives  to 
the  captors  a document  called  a Ransom  Bill,  by  which  he 

1 See  §§  179-183.  2 Stewart,  Vice- Admiralty  Reports , p.  482. 


388 


THE  LAWS  OF  WAR 


promises  that  they  shall  within  a given  time  receive  a 
certain  sum,  and  is  allowed  in  return  to  take  his  ship  to  a 

port  of  his  own  country  by  a prescribed  course 

The  practice  of  < J J % r 

giving  and  accept-  and  within  a fixed  time.  This  practice  is  recoer- 

ing  Ransom  Bills.  A © 

nized  by  International  Law,  which  exempts  the 
ship  from  capture  till  it  has  completed  its  voyage  in  fulfilment 
of  the  conditions  laid  down.  It  is  protected  by  a copy  of  the 
Ransom  Bill,  which  is  retained  by  the  master  and  has  the 
effect  of  a safe-conduct.  But  the  protection  vanishes  if 
the  vessel  deviates  from  the  prescribed  course  or  exceeds 
the  stipulated  time  without  urgent  necessity.  She  is  then 
liable  to  capture  by  any  ship  of  the  enemy  or  his  allies,  and 
should  she  be  taken  a second  time  the  first  captor  obtains 
the  ransom  money  from  the  proceeds  of  her  sale  after  con- 
demnation, while  the  second  has  to  be  content  with  the 
balance.  The  capture  of  her  captors  by  a cruiser  of  her  own 
state  or  its  allies  has  the  effect  of  nullifying  the  contract 
of  ransom,  provided  that  the  Ransom  Bill  and  the  hostage 
who  is  usually  taken  as  collateral  security  are  on  board  at 
the  time.  The  courts  of  most  states  look  upon  Ransom  Bills 
as  contracts  of  necessity  and  allow  the  captor,  though  an 
enemy,  to  sue  directly  for  the  sum  agreed  upon,  if  the 
owners  of  the  ship  and  cargo  decline  to  pay  it.  But  Great 
Britain  holds  so  strictly  to  the  rule  that  enemy  subjects 
have  no  locus  standi  in  each  other’s  courts  during  the  war 
that  she  will  not  permit  such  procedure.  The  difficulty 
was,  however,  surmounted  by  allowing  the  British  hostage 
to  bring  an  action  in  British  courts  for  the  recovery  of  his 
liberty,  which  could,  of  course,  be  obtained  only  by  the  pay- 
ment of  the  promised  sum.1 

It  is  clear  on  the  face  of  the  matter  that  the  practice  of 
ransom  involves  a surrender  of  a portion  of  the  possible  pro- 
ceeds of  a capture  in  return  for  the  certainty  of  a pecuniary 
gain  to  the  captors.  It  is  therefore  objectionable  from  the 
point  of  view  of  each  of  the  belligerents.  One  does  not 
1 Halleck,  International  Law , Ch.  XXIX.,  §§  20-26. 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA.  389 


obtain  the  benefit  of  his  full  rights  against  his  foe  and  the 
other  is  condemned  to  a certain  loss,  whereas  the  chances 
of  recapture  might  turn  out  favorably,  or  the  Prize  Courts 
might  pronounce  against  the  validity  of  the  capture.  More- 
over, the  moral  objections  to  the  system  are  not  without 
weight.  It  tends  to  foster  the  idea  that  the  end  of  war  is 
the  enrichment  of  individuals  rather  than  the  redress  of  the 
grievances  of  states,  and  it  encourages  a traffic  in  what  can 
be  justified  only  as  a means  of  reducing  the  resources  of  the 
enemy.  Great  Britain  has  prohibited  the  practice  for  more 
than  a hundred  years.  By  her  present  law  1 the  Crown  has 
power  by  Order  in  Council  to  make  what  regulations  it 
pleases  upon  the  matter;  and  as  no  order  permitting  ransom 
has  been  issued,  the  officers  of  her  royal  navy  are  forbidden 
to  accept  it 2 and  the  masters  of  her  merchantmen  to  give  it. 
Her  example  has  been  followed  by  the  Baltic  powers ; but 
France  has  placed  no  restrictions  upon  her  navy,  and  the 
United  States  puts  no  obstacle  in  the  way  of  her  officers 
and  citizens  who  may  wish  to  make  a profit  by  contracts 
of  ransom.3 

§ 209. 

When  property  captured  by  the  enemy  is  recaptured  at  sea 
or  in  harbor,  it  is  generally  restored  to  the  original  owners 
by  what  is  called,  on  the  analogy  of  those  rules 

J m °*/  Recapture  at  sea 

of  Roman  Law  which  gave  back  to  persons  and  and  the  jus  post- 
things  their  original  position  on  their  rescue 
from  the  power  of  the  enemy,  jus  postliminii  or  postliminy.4 
During  the  formative  period  of  modern  International  Law 
there  was  some  doubt  as  to  the  application  of  this  principle. 
The  Consolato  del  Mare  is  the  only  mediaeval  maritime  code 
which  mentions  restoration  after  recapture,  and  its  references 

1 The  Naval  Prize  Act , 27  and  28  Victoria,  c.  25. 

2 Holland,  Manual  of  Naval  Prize  Law , p.  79. 

3 Hall,  International  Law , § 151,  note. 

4 Justinian,  Digest , XLIX.,  xv. 


390 


THE  LAWS  OF  WAR 


to  the  subject  are  obscurely  worded.1  Grotius  hardly  ven- 
tures to  decide  whether  ships  can  claim  the  benefit  of  post- 
liminy.2 The  first  clear  and  undoubted  instance  of  its  exten- 
sion to  them  as  a matter  of  state  policy  'occurred  in  1584, 
when  the  French  Government  directed  that  vessels  recap- 
tured within  twenty-four  hours  of  their  capture  by  the  enemy 
should  be  restored  to  their  original  owners.3  The  British 
in  1649  adopted  a rule  practically  identical  with  their  pres- 
ent usage,  and  the  Dutch  in  1666  ordered  restitution  if 
the  recapture  was  effected  before  the  vessel  had  been  sold  by 
the  captors  and  sent  on  a fresh  voyage.4  Other  states  soon 
followed  this  example,  and  the  practice  of  restoration  became 
general.  There  is,  however,  one  exception  to  its  generality. 
If  the  recaptured  vessel  was  duly  set  forth  as  a ship-of-war 
by  the  enemy’s  authorities,  while  they  had  it  under  their 
control,  it  is  not  given  back  to  the  original  owners,  but  be- 
comes the  prize  of  the  recaptors.  It  is  now  an  undoubted 
rule  of  International  Law  as  between  neutral  and  belligerent 
powers  that,  when  one  party  to  the  war  has  captured  a neu- 
tral vessel  and  the  other  has  taken  her  out  of  his  adversary’s 
hands,  she  must  be  restored  to  the  neutral  owners  without 
salvage  if  the  original  capture  was  effected  under  such  cir- 
cumstances that  it  may  be  presumed  no  Prize  Court  would 
have  decreed  condemnation,  but  if  confiscation  was  practi- 
cally certain  a reasonable  salvage  must  be  paid.  The  Court 
in  deciding  upon  its  amount  would  probably  act  upon  the 
principle  of  reciprocity,  and,  failing  that,  would  apply  the 
rules  of  recapture  as  between  subjects  of  its  own  state. 
Allies  in  a war  apply  to  each  other  the  law  of  the  claimant’s 
country  at  the  time  of  the  recapture,  and  if  one  of  them  re- 
sorts to  a less  liberal  rule,  the  others  treat  his  subjects  as  he 
treats  theirs.  But  in  the  vast  majority  of  recaptures  the 

1 Phillimore,  Commentaries , Pt.  X.,  Ch.  vi.,  § 409. 

‘2  De  Jure  Belli  ac  Pads , III.,  ix.,  xiv.-xviii. 

3 Robinson,  Collectanea  Maritima , 116. 

4 Bynkerslioek,  Qucestiones  Juris  Publici , Bk.  I.,  Cli.  4. 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA.  391 


recovered  property  is  owned  by  subjects  of  the  state  whose 
cruisers  have  rescued  it  from  the  enemy.  In  such  cases  the 
conditions  of  restoration,  and  the  amount  to  be  paid  to  the 
recaptors  as  salvage,  are  determined  by  the  law  of  the  coun- 
try to  which  all  the  parties  belong ; and  a great  diversity 
of  rules  is  the  result.  By  an  Act  of  Congress  of  1800  the 
United  States  have  granted  restoration  of  the  property  to 
the  original  owners,  if  the  recapture  is  effected  before  con- 
demnation of  the  ship  in  a regularly  constituted  Prize  Court 
of  the  enemy,  and  have  secured  for  the  recaptors  a salvage  of 
one-eighth  of  the  value  of  the  property  they  retake.  France 
restores  on  payment  of  a thirtieth  as  salvage  if  the  recapture 
was  effected  within  twenty-four  hours  of  the  original  seiz- 
ure, but  if  a longer  time  has  elapsed  a salvage  of  one-third 
is  given.  The  English  rule  is  the  most  liberal  of  any.  It 
is  embodied  in  the  Naval  Prize  Act  of  1864,  but  has  been 
the  same  in  essentials  for  the  last  two  hundred  and  fifty 
years.  It  provides  for  restitution  if  the  recapture  is  effected 
at  any  time  during  the  war  that  witnessed  the  capture, 
and  decrees  a normal  salvage  of  one-eighth,  which  may  be 
increased  to  a fourth  if  the  service  has  been  one  of  special 
difficulty  and  danger.  Several  states  have  adopted  the  Brit- 
ish usage;  but  there  is  very  little  uniformity  in  the  matter, 
the  different  treatment  accorded  to  different  countries  in 
consequence  of  treaty  stipulations,  and  divergent  views  as 
to  the  exact  moment  when  a good  title  is  obtained  by  an 
enemy  captor,  causing  numerous  variations  in  practice.  In 
the  days  when  privateering  flourished  those  who  engaged 
in  it  generally  received  more  salvage  than  the  regular  officers 
and  crews  of  the  state’s  navy;  and  at  the  present  time  the 
law  of  most  maritime  nations  grants  a larger  share  than  usual 
of  the  rescued  property  when  it  is  recaptured  from  pirates. 
But  if  the  crew  of  a captured  ship  rise  upon  their  captors 
and  retake  the  vessel,  they  cannot  substantiate  a claim  to 
salvage ; for  it  is  held  that  their  action  is  no  more  than  a 
continuation  of  that  resistance  to  the  enemy’s  force  which 


392 


THE  LAWS  OP  WAR 


it  is  their  duty  to  offer  whenever  there  is  a chance  of  suc- 
cess. If  however  any  members  of  the  crew  or  passengers 
are  not  subjects  of  the  state  whose  flag  the  vessel  carries 
and  do  not  belong  to  a country  allied  with  it  in  the  war, 
salvage  is  due  to  them  because  they  were  in  no  way  bound 
to  assist  in  the  rescue,  and  consequently  their  aid  deserves 
a substantial  recompense.  This  doctrine  was  laid  down  by 
Lord  Stowell  in  the  case  of  the  Two  Friends -,1  an  American 
vessel  which  hail  been  taken  by  the  French  in  the  course  of 
the  hostilities  between  the  United  States  and  France  in 
1799.  She  was  recaptured  by  the  crew  with  the  assistance 
of  a few  British  seamen  who  were  working  their  passage  to 
London  in  her,  and  the  Court  decided  in  favor  of  their  elaim 
to  remuneration.  A land  force  may  share  salvage  if  the 
recaptures  were  due  to  operations  carried  on  by  it  and  a 
naval  force  acting  together.  It  may  even  obtain  salvage 
when  acting  alone,  in  a ease  where  the  result  of  its  military 
operations  against  an  enemy’s  port  is  to  cause  the  surrender 
of  the  place  with  vessels  taken  by  the  enemy  from  its  com- 
patriots lying  in  the  harbor. 

§ 210. 

We  have  discussed  the  rights  of  capture  possessed  by  bel- 
ligerents as  far  as  it  is  possible  to  do  so  without  introducing 
The  Right  of  questions  connected  with  neutrality.  But  in 
Search'  order  that  belligerents  may  be  able  to  exercise 

these  rights,  it  is  necessary  that  they  should  possess  what  we 
may  call  the  ancillary  right  to  stop,  detain  and  overhaul  mer- 
chantmen, in  order  to  discover  whether  the  ships  themselves 
or  the  goods  they  carry  are  liable  to  seizure  and  detention. 
This  is  called  indifferently  the  Right  of  Search  or  the  Right 
of  Visit  and  Search.  Apart  from  treaty,  there  is  no  Right 
of  Visit  without  a right  to  examine  the  papers  of  the  ship 
visited,  and  rummage  among  its  cargo  if  they  are  not  satis- 

1 Robinson,  Admiralty  Reports , I.,  271. 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA.  398 

factory,  and  no  Right  of  Search  without  a right  to  detain  the 
vessel  searched  if  a thorough  examination  of  it  reveals  cir- 
cumstances of  grave  suspicion. 

All  jurists  agree  that  the  Right  of  Search  belongs  by  the 
common  law  of  nations  to  belligerents,  and  to  belligerents 
only.  It  is,  as  Judge  Story  said  in  the  case  of  the  Marianna 
Flora,1  “allowed  by  the  general  consent  of  nations  in  time 
of  war  and  limited  to  those  occasions”;  and  his  statement 
may  be  regarded  as  universally  true,  since  the  abandonment 
by  Great  Britain  in  1858  of  her  claim  to  a Right  of  Visit  in 
time  of  peace,  in  order  to  discover  the  real  nationality  of 
vessels  suspected  of  being  engaged  in  the  slave  trade.  The 
exceptions  introduced  by  convention  are  themselves  proof 
that  without  special  agreement  no  search  can  take  place 
except  as  an  incident  of  warfare.2  It  is  equally  true  that 
the  right  does  not  extend  to  public  vessels.  It  can  be  exer- 
cised upon  merchantmen  only.  They  are  bound  to  submit 
to  search  from  a lawfully  commissioned  belligerent  cruiser. 
Resistance  to  it  will  bring  down  certain  capture  and  con- 
demnation upon  a ship  or  cargo  otherwise  innocent.  An 
enemy  merchantman  may  fight  when  attacked,  but  unless  it 
can  succeed  in  beating  off  the  foe  its  resistance  will  put  it 
in  a worse  position  than  before.  A neutral  merchantman 
violates  International  Law  if  it  makes  an  attempt  to  repel 
belligerent  search  by  force  of  arms.  Success  might  save  it 
for  the  moment,  but  not  for  long.  An  international  ques- 
tion would  be  raised  between  its  country  and  the  injured 
belligerent;  and,  unless  its  government  wished  to  provoke 
complications,  some  kind  of  punishment  would  fall  upon  it 
for  its  unlawful  proceeding.  But  though  neutral  ships  of 
commerce  must  submit  to  belligerent  search,  neutral  men- 
of-war  are  free  from  it.  Any  attempt  to  enforce  it  against 
them  would  be  a gross  outrage.  Even  at  the  beginning  of 
the  present  century  the  British  Government  disavowed  the 
act  of  Admiral  Berkeley  in  ordering  the  vessels  of  his  squad- 

1 Wheaton,  Reports  of  the  Supreme  Court , XI.,  1.  2 See  § 124. 


394 


THE  LAWS  OF  WAR 


ron  to  search  the  American  ship-of-war  Chesapeake  for  de- 
serters from  the  royal  navy.  In  consequence  of  this  order 
a conflict  took  place  between  the  Chesapeake  and  the  Leopard , 
and  after  the  surrender  of  the  former  four  seamen  were  taken 
out  of  her.  These  unjustifiable  and  high-handed  proceed- 
ings nearly  led  to  a war  between  the  two  countries  in  1807. 
It  was  averted  at  the  time  by  the  disavowal  of  the  British 
Government,  and  its  tender  of  indemnity  to  those  American 
citizens  who  were  injured  in  the  action  and  the  families  of 
those  who  were  slain ; but  unfortunately  the  dispute  as  to 
the  right  of  impressment  still  went  on,  and  became  the  chief 
cause  of  the  War  of  1812. 1 The  search  of  a neutral  public 
vessel  by  a belligerent  cruiser  was  an  outrage  in  the  first 
decade  of  the  nineteenth  century.  It  is  a moral  impossibility 
to-day. 

A belligerent  vessel  may  chase  under  false  colors  or  with- 
out colors  of  any  kind ; but  before  it  commences  the  actual 
work  of  visit  and  search  it  must  hoist  its  country’s  flag.  If 
hailing  is  impossible,  or  if  the  suspected  vessel  takes  no 
notice  of  it,  the  chasing  cruiser  may  signal  her  to  bring  to 
by  using  blank  cartridge,  and  then,  if  necessary,  sending  a 
shot  across  her  bows.  This  is  called  firing  the  semonce  or 
affirming  gun.  Any  other  signal  likely  to  be  understood  is 
equally  lawful,  but  some  unmistakable  summons  is  neces- 
sary. Not  till  it  has  been  given  and  disregarded  is  the  use 
of  force  allowed.  Into  the  incidents  of  a conflict  we  need 
not  go.  They  have  nothing  in  common  with  the  procedure 
of  a search.  Assuming  that  the  summons  of  the  belligerent 
cruiser  is  obeyed,  the  next  step  taken  by  her  commander  is 
to  send  an  officer  in  uniform  on  board  the  vessel  to  be 
searched.  The  visiting  officer  should  question  the  master 
of  the  vessel  and  examine  her  papers.  If  any  circumstances 
of  suspicion  are  revealed  by  his  examination,  but  not  other- 
wise, he  is  at  liberty  to  call  his  boat’s  crew  on  board  and 
order  them  to  make  a thorough  search  of  the  vessel.  Should 
1 Wharton,  International  Law  of  the  United  States,  §§  315  6,  331. 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA.  395 


the  search  confirm  the  suspicions,  the  commander  of  the 
cruiser  may  take  possession  of  the  ship,  secure  her  papers 
and  hold  her  master  and  crew  as  prisoners.  But  through- 
out his  proceedings  he  is  bound  to  use  courtesy  and  consider- 
ation, and  to  carry  on  the  search  with  as  little  disturbance 
as  possible  of  the  interior  economy  or  navigation  of  the  sus- 
pected vessel.  The  regular  course  is  to  send  her  to  the  most 
accessible  Prize  Court  of  his  own  state  for  adjudication.  If 
the  grounds  on  which  the  capture  was  effected  turn  out  to 
be  good,  condemnation  will  ensue,  and  the  captors  will  re- 
ceive the  proceeds  of  the  sale  of  the  captured  property  in  the 
form  of  prize  money.  If  the  evidence  against  the  vessel  is 
not  conclusive  in  spite  of  circumstances  of  just  and  reasona- 
ble suspicion,  she  will  be  released,  but  her  owners  will  have 
to  bear  the  expense  of  detention  and  delay.  But  if  the  capt- 
ure was  effected  on  frivolous  and  foolish  grounds,  the  officer 
responsible  for  it  will  be  condemned  in  costs  and  damages. 
And  the  same  rule  holds  good  in  the  more  difficult  matter  of 
the  treatment  of  vessels  suspected  of  piracy  by  the  cruisers 
of  non-belligerent  powers.  Being  at  peace  they  have  no 
right  to  search  unless  the  ship  they  have  in  view  is  really 
a pirate,  in  which  case  they  are  free  to  go  further  and  capt- 
ure. But  they  canuot  tell  whether  the  right  to  seize  the 
vessel  exists  until  they  have  visited  and  overhauled  her. 
They  must,  therefore,  be  guided  by  surrounding  circum- 
stances. Should  the  information  they  have  received  and 
the  behavior  of  the  vessel  when  approached  give  rise  to 
reasonable  suspicion  that  she  is  a pirate,  their  commanders 
are  not  liable  to  damages  for  seizing  her,  even  if  it  should 
turn  out  that  her  errand  was  perfectly  lawful.  But  if  they 
have  made  an  inexcusable  mistake  they  must  suffer  for  it. 
On  the  other  hand,  should  the  vessel  be  really  a pirate,  their 
action  is  lawful  from  the  beginning  and  they  have  per- 
formed a meritorious  service.1 

1 See  case  of  the  Marianna  Flora  in  Wheaton,  Beports  of  the  Supreme 
Court , XI.,  1. 


896 


THE  LAWS  OP  WAR 


The  procedure  we  have  just  sketched  gives  all  reasonable 
security  to  neutrals  against  vexatious  and  unnecessary  in- 
terference with  their  vessels  and  cargoes ; but  many  Euro, 
pean  writers,  in  their  zeal  against  belligerent  search,  hav6 
endeavored  to  surround  it  with  further  limitations.  They 
sometimes  state  as  undoubted  law  rules  that  are  purely 
theoretical.  Hautefeuille,  for  instance,  declares  that  th& 
searching  officer  must  in  no  case  go  beyond  an  examination 
of  the  ship’s  papers,1  and  Ortolan  allows  further  steps  to  be 
taken  only  when  there  is  a suspicion  of  fraud  about  the 
papers.2  Rules  like  these  can  be  embodied  in  special  con- 
ventions by  states  who  wish  their  sliips-of-war  to  be  ham- 
pered by  them,  but  they  are  unknown  to  the  ordinary  law  of 
nations,  and  therefore  not  binding  in  the  absence  of  treaty 
stipulations.  Nor  can  it  be  said  that  they  would  form  a 
desirable  addition  to  the  corpus  of  International  Law.  We 
shall  see  almost  immediately  that  further  restrictions  upon 
the  present  wide  right  of  capturing  private  property  at  sea 
are  eminently  desirable;  but  unless  maritime  warfare  is  to 
be  made  absolutely  ineffective  for  the  purpose  of  weakening 
an  enemy’s  l’esources,  belligerents  must  retain  the  power  of 
seizing  contraband  goods  conveyed  in  neutral  vessels.  And 
as  long  as  capture  exists,  the  means  of  effecting  it  must  exist 
also.  To  deprive  search  of  efficiency  is  to  reduce  capture  to 
an  expensive  farce.  No  doubt  the  right  of  search  is  exceed- 
ingly troublesome  to  neutrals.  It  causes  their  merchantmen 
much  annoyance  and  some  loss,  even  when  they  have  not 
rendered  themselves  liable  to  detention  and  condemnation, 
and  naturally  their  governments  endeavor  to  minimize  it. 
The  most  persistent  move  in  this  direction  has  been  an 
attempt  on  the  part  of  several  states  to  secure  freedom 
from  belligerent  search  for  neutral  ships  of  commerce  sailing 
under  the  escort  of  a ship  of  war  of  their  own  nationality. 
We  shall  consider  it  under  the  head  of  Convoy  when  we  deal 

1 Droits  des  Nations  Neutres,  Tit.  IX.,  Ch.  i 

2 Diplomatic  de  la  Mer,  Liv.  III.,  Ch.  vii. 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA.  397 

with  the  Law  of  Neutrality.1  Here  it  is  sufficient  to  say 
that  little  good  can  be  done  by  depriving  the  operations  of 
warfare  of  efficiency  while  still  allowing  them  to  remain 
in  use. 

# § 211. 

We  have  had  occasion  in  the  preceding  paragraphs  to  men- 
tion a ship’s  papers  on  several  occasions,  but  we  have  not  yet 
explained  what  is  meant  by  "the  phrase,  and  it 

. . Ships’  papers. 

Avi  11  be  convenient  to  do  so  now.  International 
Law  requires  every  merchantman  to  carry  certain  documents, 
as  evidence  of  her  nationality  and  proof  of  the  real  nature 
and  destination  of  her  cargo.  She  should  also  have  on  board 
a record  of  her  course,  written  evidence  of  the  ownership  of 
both  vessel  and  cargo,  a muster-roll  of  her  crew,  and  full 
statements  as  to  any  contract  concerning  the  letting  and 
hiring  of  the  vessel  and  the  obligations  undertaken  by  the 
master  with  respect  to  the  delivery  of  the  goods  under  his 
charge.  The  exact  form  and  number  of  these  papers  differ 
according  to  the  law  of  the  various  maritime  countries,  but 
they  must  always  be  sufficient  to  fix  the  nationality  of  the 
ship,  her  destination,  and  the  ownership  of  vessel  and  cargo. 

A list  of  the  papers  required  by  the  law  of  each  civilized 
state  will  be  found  in  Manuals  of  Prize  Law  issued  by  the 
naval  authorities  of  the  chief  maritime  nations  and  in  some 
of  the  large  works  on  International  Law.2  The  absence  of 
papers  will  justify  detention  by  a belligerent  cruiser,  as  will 
also  the  presence  of  false  papers,  or  gross  irregularities, 
omissions,  or  inconsistencies  in  the  papers  produced.  What 
is  technically  called  spoliation  of  papers  has  given  rise  to  a 
difference  of  treatment  among  the  Prize  Courts  of  the  lead- 
ing naval  powers.  The  phrase  signifies  the  wilful  destruc- 
tion of  documents  by  throwing  them  overboard  during  a 
chase,  or  by  any  other  means.  The  British  and  American 
practice  is  to  regard  it  as  good  ground  for  the  capture  of 
1 See  § 268. 


2 e.g.  Hall,  International  Law , Appendix  II. 


398 


THE  LAWS  OF  WAR 


the  vessel,  but  not  necessarily  good  ground  for  condemna- 
tion. It  affords  a strong  presumption  of  her  guilt,  but  not 
a presumption  which  cannot  be  rebutted  by  evidence  to  the 
contrary.  On  the  other  hand,  most  European  nations  hold 
that  it  is  absolutely  conclusive  against  the  ship,  and  ex- 
clude further  proof.1 

§ 212. 

As  between  belligerents  superior  force  is  its  own  justifica- 
tion. If  enemy  property  is  captured  at  sea  under  circurn- 
The  nature  of  Prize  stances  that  render  it  liable  to  hostile  seizure 

Courts  and  the  re-  , , , 1 n p . 1 

sponsibiiity  of  the  and  detention  by  the  laws  ot  war,  the  rights 

state  for  their  . ° 

decisions.  of  the  original  owners  are  destroyed,  though, 

as  we  have  recently  seen,  they  may  be  revived  by  the  jus 
postliminii  in  cases  of  recapture.  But  sometimes  it  is  doubt- 
ful whether  certain  property  really  belongs  to  an  enemy 
owner,  or  whether  the  capture  was  effected  in  a place  where 
warlike  operations  may  be  carried  on;  and  it  is  always 
necessary  to  determine  the  exact  extent  of  the  proprietary 
rights  accruing  to  the  individual  captors.  It  follows,  there- 
fore, that  the  intervention  of  a court  is  highly  desirable, 
even  in  cases  where  belligerent  property,  or  what  is  believed 
to  be  such,  is  the  only  subject-matter  concerned.  But  de- 
sirability becomes  necessity  when  neutral  rights  and  neutral 
claims  are  involved.  Force  cannot  control  the  relations  of 
states  at  war  with  the  subjects  of  powers  which  take  no  part 
in  the  contest.  They  may  be  condemned  to  lose  their  prop- 
erty under  certain  circumstances,  but  the  mere  fact  that  a 
belligerent  has  succeeded  in  obtaining  and  keeping  posses- 
sion of  it  does  not  give  him  a right  to  it.  The  question 
whether  he  has  such  a right  or  not  is  a question  of  law  to 
be  settled  by  judicial  proceedings.  Accordingly,  all  civi- 
lized belligerents  establish  Prize  Courts  for  the  protection 
of  neutral  subjects  and  the  proper  adjustment  of  the  claims 
of  captors.  When  the  servants  of  a state  seize  enemy  prop- 

1 Halleck,  International  Law , Ch.  xxvii.,  § 27. 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA.  399 


erty  at  sea,  in  strictness  of  law  they  seize  it  for  their  coun- 
try, and  not  for  themselves;  but,  as  in  the  similar  case  of 
booty  on  land,  the  law  of  every  civilized  nation  gives  the 
whole  or  a portion  of  the  captured  movables  to  the  captors 
according  to  some  scale  of  reward  fixed  b}r  public  authority. 
In  the  United  States  Congress  has  power  to  make  rules 
concerning  captures  at  sea,  and  it  exercised  this  power  in 
1864  by  passing  an  act  which  gave  the  whole  of  the  value 
to  the  captors  when  the  vessel  or  vessels  making  the  capture 
were  of  equal  or  inferior  force  to  the  prize;  but  if  their 
force  was  superior,  they  were  to  receive  a half  only,  the  rest 
going  to  the  Treasury.  In  the  same  year  the  British  Par- 
liament legislated  on  the  subject  in  the  Naval  Prize  Act, 
which  expressly  declares  that  captors  “shall  continue  to  take 
only  the  interest  (if  any)  in  the  proceeds  of  prizes  as  may 
be  from  time  to  time  granted  to  them  by  the  Crown.”  But 
it  is  and  has  been  the  invariable  rule  of  the  Crown  in 
modern  times  to  surrender  the  entire  proceeds  to  the  officers 
and  men  engaged  in  the  capture.  The  general  practice  of 
Prize  Courts  is  to  order  a sale  of  the  vessel  or  goods  on  con- 
demnation ; and  the  sum  thus  realized  is  divided  among  the 
captors. 

Prize  Courts  are  municipal  tribunals  set  up  by  belligerent 
states  in  their  own  territory,  in  territory  under  their  mili- 
tary occupation,  or  in  territory  belonging  to  an  ally  in  the 
war.  In  the  last  case  the  permission  of  the  ally  must  be 
obtained  beforehand.  But  a neutral  cannot  allow  the  estab- 
lishment of  a belligerent  Prize  Court  in  its  territory  without 
a grave  breach  of  the  duties  prescribed  by  neutrality;  and  if 
one  of  the  parties  to  the  war  attempts  to  set  up  such  courts 
within  the  area  of  neutral  jurisdiction,  he  commits  a gross 
outrage  upon  the  Right  of  Independence  by  his  endeavor 
to  exercise  powers  of  sovereignty  of  the  highest  kind  in  the 
dominions  of  a friendly  and  peaceful  nation.  It  is  very 
improbable  that  anything  of  the  kind  will  he  attempted  in 
future.  But  should  such  an  aggression  take  place,  the  state 


400 


THE  LAWS  OF  WAR 


which  suffers  from  it  may  resent  it  by  war,  if  diplomatic 
pressure  fails  to  obtain  redress.  Submission  on  the  part  of 
the  neutral  government  would  bring  upon  it  reclamations 
and  possibly  hostilities  from  the  belligerent  which  suffered 
through  its  subservience.  This  was  clearly  seen  by  Wash- 
ington when,  in  1793,  Genet,  the  Minister  of  the  French 
Republic,  endeavored  to  set  up  Consular  Prize  Courts  within 
the  territory  of  the  United  States.1  After  a period  of  una- 
vailing remonstrances  addressed  to  him  personally,  his  recall 
was  demanded  from  his  government,  who  complied  with  the 
request,  and  caused  the  discontinuance  of  the  obnoxious 
proceedings. 

Though  Prize  Courts  are  set  up  by  the  authority  of  a 
belligerent  government,  and  their  judges  are  appointed  and 
paid  by  it,  they  exist  for  the  purpose  of  administering  Inter- 
national Law.  In  America,  court  after  court  has  decided 
that  International  Law  is  part  and  parcel  of  the  law  of  the 
land ; 2 and  it  is  held  that  every  member  of  the  family  of 
nations  must  submit  to  the  rules  of  the  society  of  which  it 
forms  a part.  In  England  this  view  has  not  been  so  clearly 
expressed  or  so  widely  adopted.3  But  it  is  nevertheless  the 
dominant  opinion,  and  on  the  continent  of  Europe  it  would 
meet  with  general  acceptance,  though  it  would  hardly  be 
stated  in  the  terms  we  have  used.  All  nations  would, 
however,  agree  in  holding  that  their  Prize  Courts  were 
bound  to  apply  the  rules  of  the  law  of  nations  to  the  cases 
which  came  before  them  for  settlement;  and  in  the  vast 
majority  of  cases  practice  on  this  point  coincides  with  theory. 
While  human  nature  remains  what  it  is,  the  most  upright 
and  able  of  judges  will  find  it  impossible  to  divest  them- 
selves altogether  of  influences  due  to  national  predilections 
or  professional  training.  But  it  is  possible  to  reduce  these 
disturbing  elements  to  a minimum,  and  the  great  lights  of 

1 Special  Message  of  Dec.  5,  1793. 

2 Wharton,  International  Law  of  the  United  States,  § 8. 

3 Maine,  International  Law , Lect.  II. 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA.  401 

international  jurisprudence  who  have  adorned  the  judicial 
bench  have  been  as  conspicuous  for  impartiality  as  for  learn- 
ing. There  is,  however,  one  case  where  the  most  upright 
of  judges  may  be  compelled  to  give  a decision  which  he 
knows  to  be  contrary  to  the  received  principles  and  rules 
of  the  international  code.  It  occurs  when  the  government 
of  his  own  country,  through  its  appropriate  department, 
issues  for  the  guidance  of  its  cruisers  instructions  which  order 
them  to  make  captures  of  enemy  or  neutral  vessels,  under 
circumstances  deemed  innocent  by  the  law  of  nations  as 
generally  understood  and  acted  upon.  Such  were  the  Berlin 
and  Milan  Decrees  of  the  first  Napoleon  and  the  retaliatory 
British  Orders  in  Council.  The  naval  officers  of  each  coun- 
try were,  of  course,  obliged  to  obey  the  orders  issued  to  them 
by  their  superiors,  and  the  courts  were  equally  bound  to 
notice  and  administer  the  rules  laid  down  by  legislative 
authority.  If  they  had  refused  they  would  have  been  in  a 
state  of  contumacy,  and  their  judges  would  have  been  quickly 
dismissed.  Wharton  quotes  an  article  in  the  Edinburgh 
Review  of  February,  1812,  in  which  scorn  is  poured  on  the 
theory  that  French  Courts  of  Prize  are  “bound  by  the  de- 
crees of  the  Tuileries”or  English  by  the  edicts  of  Windsor,1 
and  Halleck  asserts  that  “local  ordinances  and  municipal 
regulations  . . . are  not  binding  on  the  Prize  Courts,  even 
of  the  country  by  which  they  are  issued.”2  This  doctrine 
has  found  adherents  in  other  quarters,  but  in  truth  it  is 
simply  anarchical.  It  implies  that  naval  officers  ought  to 
disobey  orders  and  judges  refuse  to  administer  laws  imposed 
by  proper  legislative  authority.  It  arises  from  a confusion 
between  wrongful  action  on  the  part  of  the  state  and  wrong- 
ful action  on  the  part  of  its  agents.  Soldiers,  sailors,  civil 
servants,  judges  — in  short,  all  subordinate  authorities  — 
must  obey  the  orders  of  the  supreme  power,  except  in  those 
rare  cases  in  which  resistance  and  revolution  are  justifiable. 

1 International  Law  of  the  United  States,  § 329  a. 

2 International  Law , Ch.  xxxii.,  § 19. 


402 


THE  LAWS  OF  WAR 


But  the  state  itself  is  responsible  to  other  states  for  any 
injury  done  to  them  or  their  subjects  by  proceedings  in  ex- 
cess of  its  lawful  powers  as  a belligerent.  Its  Prize  Courts, 
if  left  to  themselves,  as  they  ought  to  be  and  generally  are, 
will  administer  International  Law;  hut  if  legislation  con- 
trary to  International  Law  is  thrust  upon  them,  they  must 
obey  it.  Other  states,  however,  are  in  no  way  bound  to 
submit;  and  if  neutrals  think  themselves  aggrieved  because 
of  decisions  arrived  at,  either  spontaneously  or  in  conse- 
quence of  legislative  acts,  they  will  complain  to  the  bellig- 
erent government.  The  effect  of  a decision  in  a Prize  Court 
is  to  settle  all  proprietary  rights  in  the  vessel  or  goods  under 
adjudication.  Controversy  between  the  captors  and  the 
claimants  is  terminated  by  the  final  judgment  on  appeal,  and 
a court  of  another  country  cannot  afterwards  review  the 
decision.  But  compensation  for  damage  suffered  in  conse- 
quence of  it  may  be  demanded  on  behalf  of  neutral  sufferers 
by  their  own  government.  A state  is  responsible  for  the 
decisions  of  its  Prize  Courts ; and  if  they  have  acted  un- 
justly, it  is  its  duty  to  give  satisfaction.  Many  instances 
where  this  has  been  done  may  be  found  in  the  history  of 
international  relations.  We  may  give,  as  an  example,  the 
award  of  the  Mixed  Commission,  appointed  under  the  Treaty 
of  1794  between  Great  Britain  and  the  United  States.  It 
granted  an  indemnity  in  respect  of  several  cases  in  which  the 
British  Prize  Courts,  by  a stretch  of  the  extremest  rights 
of  a belligerent,  had  condemned  American  vessels  laden  with 
provisions  for  French  ports.1 


213. 


The  jurisdiction  of  Prize  Courts  extends  over  all  captures 
made  in  war  by  their  country’s  cruisers,  over  all  captures 
made  on  land  by  a naval  force  acting  alone  or 
in  conjunction  with  military  forces,  and  over 
seizures  made  afloat  in  anticipation  of  war.  It  also  includes 
1 Treaties  of  the  United  States,  384,  385,  1322-1324. 


The  jurisdiction 
of  Prize  Courts. 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA.  403 

all  recaptures,  ransoms  and  ransom  bills,  and  all  incidental 
questions  growing  out  of  the  circumstances  of  capture  such 
as  freights  and  damages.  Speaking  generally,  we  may  lay 
down  the  proposition  that  the  courts  of  neutrals  have  no 
jurisdiction  over  the  captures  of  belligerents.  But  to  this 
rule  there  are  exceptions.  Jurisdiction  exists  and  can  be 
exercised  when  the  capture  is  made  within  the  territorial 
limits  of  the  neutral  state,  or  when  a vessel,  originally 
equipped  for  war  within  neutral  jurisdiction,  or  afterwards 
made  more  efficient  by  an  augmentation  of  warlike  force 
therein,  takes  a prize  at  sea  and  brings  it  within  the  waters 
of  the  injured  neutral  during  the  voyage  in  which  the  ille- 
gal equipment  or  augmentation  took  place.  In  both  cases 
neutral  sovereignty  is  violated  by  one  belligerent,  and  in 
consequence  the  neutral  is  exposed  to  claims  and  remon- 
strances from  the  other.  Jurisdiction  is  therefore  conferred 
upon  it  for  its  own  protection,  and  in  order  that  it  may 
insist  upon  the  restoration  of  the  property  unlawfully  taken. 
W e shall  see  more  fully  the  bearing  of  these  principles  when 
we  deal  with  the  rights  and  duties  of  neutral  states  in  rela- 
tion to  the  naval  operations  of  the  belligerents.1 


214. 


There  is  little  in  common  between  an  ordinary  trial  and  a 
suit  in  a Court  of  Prize.  In  the  former  an  issue  between 
two  parties  is  tried.  In  the  latter  the  state  The  procedure  of 
holds  what,  following  Dana,'2  we  may  call  an  PnzeCourts- 
inquest  upon  certain  property  to  discover  whether  it  has 
been  lawfully  captured  or  not,  just  as  in  England  the  cor- 
oner holds  an  inquest  upon  a body  to  discover  whether  the 
individual  concerned  came  by  his  death  lawfully  or  not. 
Proceedings  commence  when  the  captured  vessel  has  been 
brought  into  port  within  the  jurisdiction  of  a Prize  Court 
by  an  officer  of  the  vessel  which  made  the  seizure.  He  puts 


1 See  § 264. 


2 Note  186  to  Wheaton’s  International  Law. 


404 


THE  LAWS  OF  WAR 


in  a libel,  that  is  to  say,  he  petitions  the  court  to  hold  an 
inquiry,  and  with  his  libel  or  petition  he  forwards  the 
necessary  affidavits,  the  ship’s  papers  and  other  documents. 
Notice  is  then  given  that  any  person  having  an  interest  in 
the  property  may  appear  and  claim  it,  or  any  part  of  it. 
An  enemy  cannot  come  forward,  but  citizens,  allies  or  neu- 
trals may.  As  the  next  step,  whether  claimants  appear  or 
not,  the  court  by  its  own  officers  examines  the  captured 
vessel,  its  papers  and  cargo,  and  administers  interrogatories 
to  the  persons  found  on  board.  The  captors  are  not  exam- 
ined at  this  stage,  nor  are  they  allowed  to  examine  the 
claimants  or  the  captured  persons.  When  the  court  has 
taken  the  evidence,  counsel  for  the  interested  parties  inspect 
it  and  base  their  arguments  upon  it.  The  burden  of  proof 
lies  on  the  claimants,  the  fact  that  the  vessel  was  brought 
in  under  the  control  of  the  captors  giving  rise  to  a presump- 
tion in  their  favor.  If  the  evidence  above  described,  which 
is  technically  termed  evidence  in  preparatory,  is  deemed 
satisfactory  by  the  court,  it  gives  its  decision.  If  not,  it 
calls  for  what  is  termed  further  proof.  The  proceedings  then 
take  more  closely  the  form  of  a trial  between  litigants.  The 
captors  and  the  claimants  produce  evidence,  and  the  court 
gives  judgment  accordingly.1 


§ 215. 

In  our  account  of  prize  proceedings  we  have  assumed 
throughout  that  the  vessel  has  been  brought  into  port  and 
The  obligation  of  delivered  over  to  the  custody  of  the  court, 
their'prizes  in'for  Undoubtedly  this  is  the  proper  course,  for  the 
adjudication.  proceedings  are  proceedings  in  rem  and  the 
vessel  herself,  with  her  papers  and  crew,  are  the  best  evi- 
dence that  can  be  submitted  to  the  judge.  But  though  this 
course  is  regular,  it  is  not  essential.  Property  ma}r  be 

1 Wheaton,  International  Law  (Dana’s  ed.),  480-483,  note  ; Holland, 
Manual  of  Naval  Prize  Law , Ch.  xxii. ; Naval  Prize  Act  of  1864,  §§  16-33. 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA.  405 


adjudicated  upon  when  it  lies  in  the  port  of  an  ally  in  the 
war,  or  in  a foreign  port  under  military  occupation  by  the 
captor’s  country,  or  even  in  the  port  of  a neutral.  It  is  open 
to  neutral  sovereigns  to  admit  the  prizes  of  belligerent 
cruisers  into  their  harbors.  The  prevailing  tendency  in 
modern  times  has  been  to  exclude  them ; but  it  is  impossible 
to  say  that  a breach  of  International  Law  is  committed  when 
they  are  allowed  to  enter,  provided  that  the  permission  be 
granted  impartially  to  both  sides.  And  if,  in  consequence 
of  such  a grant,  prizes  lie  in  neutral  waters,  the  courts  of 
the  leading  maritime  powers  will  adjudicate  upon  them. 
Sometimes  a captor  sells  his  prize  before  condemnation. 
Grave  necessity  will,  it  is  said,  excuse  such  an  act ; but  prize 
proceedings  for  adjudication  on  tbe  proceeds  of  the  sale 
ought  to  be  commenced  without  delay.  The  irregularity, 
however,  would  be  so  exceedingly  grave  that  we  may  well 
doubt  whether  it  would  now  be  countenanced.  Should  the 
capture  turn  out  to  be  illegal,  neutral  owners  would  have 
good  ground  of  complaint  when  the  proceeds  of  a forced  sale 
were  handed  over  to  them  instead  of  the  ship  itself.  And 
their  complaints  would  have  still  greater  justification  if  a 
belligerent  destroyed  at  sea  any  prizes  taken  from  neutrals. 
This  question  has  given  rise  to  much  discussion  in  recent 
years.  Hall  gives  an  excellent  summary  of  the  views  ex- 
pressed by  various  authorities,  and  accompanies  it  by  many 
acute  remarks  of  his  own.1  It  appears  to  be  generally 
conceded  that  when  the  captured  ship  and  cargo  is  enemy 
property  there  is  no  good  ground  for  complaining  of  her 
destruction,  provided  that  her  crippled  condition  rendered 
navigation  difficult,  or  the  contiguity  of  an  enemy  or  any 
other  cause  made  it  unsafe  to  detach  a prize  crew.  The 
doctrine  that  necessity  justifies  departure  from  the  regular 
practice  has  been  laid  down  in  British  and  French  Prize 
Courts.  In  1812  the  United  States  went  further,  and  in- 
structed their  naval  officers  at  the  outbreak  of  the  war  with 
1 International  Lavi,  § 150  and  notes. 


406 


THE  LA  AYS  OF  AVAR 


England  to  destroy  all  the  enemy  merchantmen  they  took, 
unless  they  Avere  “very  valuable  and  near  a friendly  port.”1 
The  exception  Avas  here  turned  into  the  rule  and  the  rule 
into  the  exception.  It  was  perhaps  a natural  recoil  from 
this  extreme  severity  which  caused  Woolsey  to  character- 
ize the  practice  of  destruction  as  “ barbarous  ” and  say  that 
it  “ought  to  disappear  from  the  history  of  nations.”2  Un- 
fortunately, there  appears  to  be  more  chance  of  its  extension. 
The  Confederates  burnt  or  sank  their  prizes  during  the 
great  American  Civil  War,  on  the  ground  that  the  strict 
blockade  of  their  ports  by  Northern  squadrons  rendered  it 
impossible  to  take  vessels  in  for  adjudication.  In  1870  the 
French  burned  tAvo  German  vessels  in  spite  of  the  fact  that 
they  had  neutral  goods  on  board.  The  Russians  in  1877 
destroyed  some  of  their  prizes  in  the  Black  Sea,  because 
the  Turkish  blockade  of  their  ports  made  access  to  them 
difficult;  and  in  the  various  pamphlets  and  articles  in  which 
continental  fear  and  jealousy  of  England’s  maritime  great- 
ness gloat  over  a pictured  downfall  of  her  naval  poAver,  the 
attack  which  is  fatal  to  her  commerce  is  ahvays  carried  on 
by  cruisers  Avho  do  not  encumber  themselves  Avith  captured 
British  vessels.3  It  may  be  that  the  older  rule  will  give 
Avay  under  the  impact  of  neAV  conditions.  The  chance  of 
rapidly  SAveeping  an  enemy’s  mercantile  marine  from  the 
seas  may  prove  to  be  more  attractive  than  the  chance  of 
prize-money.  But  we  may  venture  to  hope  that  the  minds 
of  the  naval  officers  of  the  future  will  not  be  perplexed  by 
the  task  of  choosing  betAveen  the  tAvo  alternatives;  for  if  the 
capture  of  private  property  at  sea  Avere  banished  from  war- 
fare, the  difficulty  could  not  arise.  MeanAvhile  it  is  neces- 
sary to  point  out  that  a broad  line  of  distinction  must  be 
drawn  betAveen  the  destruction  of  enemy  property  and  the 
destruction  of  neutral  property.  The  former  has  changed 

1 Quoted  by  Sir  A.  Cockburn  in  his  Reasons  for  dissenting  from  the 
Award  of  the  Tribunal  of  Arbitration,  p.  93. 

2 International  Law , § 148. 


3 e.g.  Russia's  Hope. 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA.  407 

owners  directly  the  capture  is  effected;  and  it  matters  little 
to  the  enemy  subject  who  has  lost  it  whether  it  goes  to  the 
bottom  of  the  sea  or  is  divided  by  public  authority  among 
those  who  have  deprived  him  of  it.  But  the  latter  does 
not  belong  to  the  captors  till  a properly  constituted  court 
has  decided  that  their  seizure  of  it  was  good  in  International 
Law;  and  its  owners  have  a right  to  insist  that  an  adjudica- 
tion upon  their  claim  shall  precede  any  further  dealings  with 
it.  If  this  right  of  theirs  is  disregarded,  a claim  for  satis- 
faction and  indemnity  may  be  put  in  by  their  government. 
It  is  far  better  for  a naval  officer  to  release  a ship  or  goods 
as  to  which  he  is  doubtful,  than  to  risk  personal  punish- 
ment and  international  complications  by  destroying  inno- 
cent neutral  property.  Even  where  what  is  believed  to  be 
enemy  property  is  concerned,  and  destruction  or  release 
become  the  only  possible  alternatives,  it  would  perhaps  be 
wise  to  adopt  the  latter  unless  the  hostile  nationality  of  the 
vessel  and  ownership  of  the  cargo  are  too  clearly  established 
to  admit  of  mistake.  But  the  necessity  of  rapid  movement 
in  modern  naval  warfare,  combined  with  the  fact  that  neu- 
tral ports  will  in  most  cases  be  closed  to  prizes,  is  almost 
certain  to  result  in  an  increase  of  the  practice  of  destruction, 
unless  the  nations  will  consent  to  take  a further  step  forward, 
and  prohibit  the  capture  of  private  property  unless  it  be  con- 
traband of  war. 

HT  § 216- 

From  time  immemorial  the  laws  of  war  have  allowed  the 
capture  of  private  property  at  sea.  But  within  the  last 
hundred  years  a strong  dislike  of  the  practice  History  of  tuepro- 
has  sprung  up  in  America  and  on  the  continent  priTateVroperty 
of  Europe.  The  United  States  has  favored  the  lromcaPtureatsea- 
policy  of  exemption  from  the  beginning  of  its  national 
career.  It  was  embodied  in  Franklin’s  treaty  with  Prussia 
in  1785, 1 but  found  no  place  in  the  subsequent  treaties  with 
1 Treaties  of  the  United  States,  905,  906. 


408 


THE  LAWS  OF  WAR 


that  poAver.  In  1823  Mr.  John  Quincy  Adams,  as  Secretary 
of  State,  proposed  to  the  governments  of  England,  France 
and  Russia  that  they  should  enter  into  a convention  for  the 
purpose  of  exempting  private  property  at  sea  from  the  dep- 
redations of  Avar,  an  exemption  which  he  seems  curiously 
enough  to  have  regarded  as  equivalent  to  “the  total  abolition 
of  private  maritime  Avar.”1  England  and  France  declined 
to  entertain  the  proposal,  and,  as  Russia  made  her  accept- 
ance conditional  on  that  of  the  other  naval  powers,  nothing 
came  of  the  effort  to  engraft  it  upon  the  international  code. 
In  1856  another  attempt  was  made  by  the  American  Govern- 
ment to  obtain  a general  recognition  of  the  principle  of 
exemption.  The  powers  assembled  in  Congress  at  Paris  had 
drawn  up  and  signed  a Declaration  on  Maritime  Law,  the 
first  article  of  which  decreed  the  abolition  of  privateering.2 
When  this  important  document  Avas  submitted  to  the  United 
States  for  signature,  President  Pierce  and  his  Cabinet  de- 
clined to  give  up  for  their  country  the  right  to  employ 
privateers,  unless  all  private  property  at  sea,  except  contra- 
band of  Avar,  Avas  freed  from  liability  to  capture.  Some  of 
the  leading  states  of  Europe,  notably  Russia  and  Prussia, 
Avere  Avilling  to  consent  to  this  enlargement  of  the  scope  of 
the  original  Declaration;3  but  the  project  fell  through  owing 
to  the  opposition  of  Great  Britain.  In  the  correspondence 
of  1861  on  the  subject  of  the  Declaration,  Mr.  Seward,  then 
Secretary  of  State,  expressed  a wish  that  it  might  he  accepted ; 
and  when,  in  1870,  the  Prussian  Government  notified  that  it 
Avould  not  capture  private  property  at  sea  during  the  Avar 
Avhich  had  just  broken  out  Avith  France,  Mr.  Fish,  in  ac- 
knoAvledging  the  receipt  of  the  declaration  in  favor  of  ex- 
emption, gave  utterance  to  the  hope  that  “the  government 
and  people  of  the  United  States  may  soon  he  gratified  by  see- 
ing it  universally  recognized  as  another  restraining  and  har- 


1 Wharton,  International  Law  of  the  United  States,  III.,  261. 

2 See  §§  223,  267. 

3 AVheaton,  International  Law  (Lawrence’s  ed.,  1864),  pp.  640,  641. 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA.  409 

monizing  influence  imposed  by  modern  civilization  upon  the 
art  of  war.”  1 In  the  following  year  he  was  able  to  do  some- 
thing towards  the  realization  of  his  own  wish  by  negotiating 
a treaty  with  Italy,  which  provided  that  in  the  event  of  war 
between  the  two  powers,  private  property  of  the  citizens  and 
subjects  of  each  should  be  exempt  from  seizure  at  sea,  unless 
it  were  contraband  of  war.2 

The  facts  just  narrated  bring  two  points  into  prominence. 
It  is  quite  clear  that  the  United  States  are  in  favor  of  exemp- 
tion as  a fixed  and  settled  policy,  and  it  is  equally  clear 
that  they  do  not  regard  it  as  part  of  the  public  law  of  the 
civilized  world.  It  is  something  to  be  desired  and  worked 
for,  not  something  which  has  been  already  obtained.  On 
the  continent  of  Europe  a preponderance  of  opinion  in  favor 
of  the  change  exists  among  jurists,  and  probably  among 
statesmen  also,  though  it  may  well  be  doubted  whether  the 
balance  of  naval  authority  inclines  towards  it.  But  the  fact 
that  the  conflict  of  1866  between  Prussia  and  Italy  on  the 
one  side  and  Austria  on  the  other  was  fought  from  beginning 
to  end  without  resort  to  the  capture  of  private  property  is 
most  significant.  When  a new  view  of  international  duty 
has  stood  tlie  test  of  a great  war,  it  can  no  longer  be  regarded 
as  purely  academic  in  its  nature ; and  the  influence  of  the 
particular  view  now  under  consideration  has  not  been  con- 
fined to  one  war.  It  made  itself  felt  in  Article  211  of  the 
Italian  Maritime  Code,  which  forbids  Italian  ships  of  war 
to  molest  the  merchant  vessels  of  any  enemy  who  refrains 
from  capturing  the  private  property  of  Italian  subjects  in 
bis  naval  operations;  and  its  strength  was  further  manifested 
in  the  Commercial  Treaty  of  1871  between  the  United  States 
and  Italy,  whereby,  as  we  have  already  seen,  the  two  countries 
agreed  to  grant  exemption,  on  the  footing  of  reciprocal  con- 
cession. There  seemed  at  one  time  every  prospect  of  freedom 
from  molestation  for  peaceful  commerce  in  the  great  war  of 

1 Wharton,  International  Law  of  the  United  States,  III.,  296. 

2 Treaties  of  the  United  States,  p.  584. 


410 


THE  LAWS  OP  WAR 


1870-71  between  France  and  Germany.  Prince  Bismarck 
declared  at  its  commencement  that  private  property  on  the 
high  seas  would  be  exempt  from  seizure  by  the  ships  of  the 
King  of  Prussia  without  regard  to  reciprocity.  But  in  Janu- 
ary, 1871,  the  concession  was  withdrawn,  because  France 
acted  upon  her  full  rights  as  a belligerent,  and  made  prizes 
of  German  merchantmen.  Clearly  this  last  instance  does  not 
give  much  help  to  the  contention  that  the  new  ideas  are  gain- 
ing ground.  It  cannot,  however,  be  denied,  that  they  have 
in  some  cases  influenced  practice ; and  when  once  the  besieg- 
ing forces  of  theory  have  gained  a footing  within  the  citadel 
of  action,  they  have  a habit  of  carrying  it  entirely  after  a 
more  or  less  stubborn  conflict  with  its  defenders. 

If  we  turn  from  the  deeds  of  rulers  and  commanders  to  the 
opinions  of  jurists,  we  shall  find  a vast  preponderance  of 
authority  in  favor  of  the  proposed  change.  During  the  last 
century  the  voices  raised  in  its  favor  were  few  and  far  be- 
tween. Franklin  in  America,  Mably  and  Galiani  in  Europe, 
were  its  chief  advocates.  But  now  the  chorus  of  its  sup- 
porters is  so  loud  and  strong  that  there  is  some  difficulty  in 
hearing  the  answers  of  those  who  still  defend  the  ancient 
practice.  Bluntschli,  De  Martens,  Bernard,  De  Laveleye, 
Calvo,  Hall,  and  many  others  now  living  or  but  recently 
removed  by  death,  have  championed  the  new  view.  The 
Institute  of  International  Law  has  twice  pronounced  in  its 
favor,1  and  there  are  no  signs  of  a reaction  in  the  works  of 
the  younger  generation  of  modern  publicists.  Why  then, 
it  may  be  asked,  has  it  not  been  adopted  by  the  maritime 
powers,  and  made  into  a rule  of  International  Law  with  the 
necessary  exceptions  and  qualifications  ? These  may  be 
found  duly  set  forth  in  the  Maritime  Code  adopted  after 
long  deliberation  by  the  Institute  of  International  Law  at 
its  session  at  Heidelberg  in  1887. 2 The  statesmen  have 
nothing  to  do  but  to  accept  the  conclusions  of  the  jurists 

1 Tableau  General  de  L'lnstitut  de  Droit  International , pp.  191,  196. 

2 Ibid.,  pp.  196,  199,  200. 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA.  411 


and  secure  for  them  the  sanction  of  general  consent.  But 
it  is  just  at  this  point  that  the  difficulty  comes  in.  France 
is  by  no  means  sure  that  the  principle  of  exemption  would 
work  in  her  interest,  and  is  but  half  converted  to  it,  as  her 
conduct  in  1870  shows.  Her  naval  authorities  and  those 
of  Russia  look  upon  attacks  directed  against  the  sea-borne 
commerce  of  England  as  one  of  their  deadliest  weapons  in 
some  possible  struggle  of  the  future.  It  is  not  improbable 
that  their  governments  might  refuse  to  enter  into  any  inter- 
national agreement  which  would  deprive  them  of  the  right 
to  use  it.  But  Great  Britain  herself  has  hitherto  been  the 
chief  obstacle  to  the  adoption  of  such  an  agreement.  In  her 
great  struggle  with  revolutionary  and  Imperial  France,  she 
not  only  destroyed  the  commerce  of  her  foes,  but  added  a 
million  tons  of  shipping  to  her  own  mercantile  marine;  and 
in  consequence  her  rulers  and  people  became  fully  convinced 
that  it  was  far  more  important  to  her  to  retain  the  liberty  of 
striking  at  her  enemy’s  merchantmen  than  to  secure  the 
safety  of  her  own.  It  is  exceedingly  difficult  to  expel  a 
rooted  idea  from  the  mind  of  a people.  Since  the  fall  of 
Napoleon  science  has  revolutionized  both  commerce  and  war- 
fare, and  the  internal  economy  of  England  has  undergone  a 
complete  change  with  the  increase  of  her  population  and 
her  manufactures.  She  now  imports  most  of  the  raw  material 
of  her  industries  and  about  three-quarters  of  her  wheat  sup- 
plies, besides  vast  quantities  of  other  goods.  War  under  its 
present  rules  would  mean  the  immediate  loss  of  her  carrying 
trade,  if  her  enemy  were  able  to  place  a few  swift  cruisers 
upon  the  seas.  A temporary  disaster  to  her  fleet  would 
entail  the  ruin  of  many  of  her  manufactures ; and  a serious 
blow  to  her  naval  power  would  result  in  the  slow  starvation 
of  millions  of  her  people.  On  the  other  hand,  the  destruc- 
tion of  the  commerce  of  any  of  her  possible  foes  among 
powers  of  the  first  rank  would  mean  for  it  no  more  than  seri- 
ous inconvenience.  She  might  drive  its  merchant  flag  from 
the  seas,  and  shut  up  its  men-of-war  in  their  harbors,  but 


412 


THE  LAWS  OF  WAR 


the  railways  would  pour  in  what  it  needed  over  its  land 
frontiers,  and  it  would  be  able  to  fight  on,  though  some  sec- 
tions of  its  population  might  suffer  from  the  stoppage  of 
its  ocean  trade.  The  United  Kingdom,  however,  has  no 
land  frontiers,  and  could  not  obtain  supplies  in  sufficient 
quantity  if  it  lost  the  command  of  the  sea ; for  one  of  the 
peculiarities  of  its  position  is  that  it,  and  it  alone  of  all  the 
great  states  of  the  world,  does  not  only  its  own  carrying 
trade  but  also  a large  part  of  the  carrying  trade  of  other 
nations.  Consequently  neutrals  would  be  unable  on  a sud- 
den emergency  to  find  the  ships  in  which  to  bring  to  it  the 
goods  it  could  not  import  in  its  own  vessels.  No  doubt  it 
is  very  unlikely  that  Great  Britain  will  be  deprived  of  her 
naval  superiority  ; and  it  may  be  argued  that,  as  she  came 
successfully  and  with  increased  trade  through  the  only  life 
and  death  struggle  she  has  been  engaged  in  since  she  be- 
came a manufacturing  nation,  she  would  be  able  to  flourish 
under  similar  conditions  now.  But  the  conditions  cannot 
be  similar.  They  must  be  utterly  dissimilar,  as  a few  fig- 
ures will  show.  Early  in  the  nineteenth  century  Great 
Britain  imported  about  two  pounds  of  wheat  and  flour  every 
year  for  each  unit  of  her  population ; now,  at  the  end  of  the 
century,  she  imports  about  four  hundred  and  seventy  pounds. 
When  the  war  with  France  broke  out  afresh  in  1803,  she  had 
in  round  numbers  two  million  tons  of  shipping  and  a foreign 
trade  amounting  to  <£62,000,000  to  protect;  to-day  she  and 
her  colonies  have  more  than  ten  million  tons  of  shipping, 
and  a foreign  trade  amounting  to  quite  £1,100,000,000. 
Moreover,  ninety  years  ago  she  could  capture  her  enemy’s 
goods  when  found  under  neutral  flags,  whereas  she  has  been 
estopped  since  1856  from  doing  so  by  her  acceptance  of  the 
Declaration  of  Paris.1  It  follows  that  the  commerce  of  her 
foes  could  easily  be  carried  on  in  non-belligerent  vessels, 
whereas  we  have  just  seen  that  she  would  be  unable  on 
account  of  her  very  commercial  supremacy  to  adopt  for  the 

i See  § 267. 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA.  413 

security  of  her  own  trade  the  plan  whereby  they  would 
shelter  theirs  from  her  attacks.  Considerations  such  as  these 
have  induced  several  English  writers  1 to  advocate  the  prin- 
ciple of  the  exemption  of  private  property  from  capture 
at  sea;  but  they  have  not  succeeded  in  converting  their 
government,  and  at  present  public  opinion  is  apathetic. 

§ 217. 

On  the  whole,  it  may  be  said  that  motives  of  self-interest 
have  determined  the  policy  adopted  by  states  on  this  ques- 
tion, whereas  publicists  have  usually  argued 

.7  Arguments  for  and 

it  on  moral  grounds,  those  who  are  in  favor  against  the  pro- 

° . posed  exemption. 

of  the  change  point  to  the  security  from  pillage 
now  enjoyed  by  private  property  on  land,  and  denounce  as 
barbarous  its  continued  liability  to  capture  at  sea.  Most  of 
them 2 repeat  the  declaration  of  Portalis,  which  he  in  turn 
borrowed  from  Rousseau,  that  war  is  a relation  of  state  to 
state,  not  of  individual  to  individual,  and,  regarding  it  as 
axiomatic,  have  no  difficulty  in  showing  that  the  present 
state  of  maritime  law  is  inconsistent  with  it.  They  also 
argue  that,  as  the  great  naval  powers  have  already  accepted 
the  doctrine  of  Free  Ships,  Free  Goods,  the  further  step  of 
agreeing  to  complete  exemption  would  he  no  great  matter 
from  the  point  of  view  of  a powerful  belligerent,  while  it 
would  be  a marked  gain  to  humanity.  The  defenders  of  the 
present  practice  point  out  that  the  analogy  .of  land  warfare  is 
deceptive.  An  occupied  province  can  be  made  to  assist  the 
invader  by  its  resources,  whereas  at  sea  there  is  no  alterna- 
tive between  capturing  private  property  or  letting  it  go  free 
to  strengthen  the  resources  of  the  enemy.  Now  that  priva- 

1 e.g.  Hall,  Article  in  Contemporary  Review  for  October,  1875,  and  Law- 
rence, Essays  on  some  Disputed  Questions  in  Modern  International  Law,  VII. 

2 e g.  De  Laveleye  in  Revue  de  Droit  International , Vol.  VII.,  660-602, 
and  in  Pall  Mall  Gazette  of  Oct.  10,  1881 ; Bluntschli  in  Revue  de  Droit 
International , Vol.  IX.,  549-557,  and  Vol.  X.,  70-82;  Acollas,  Droit  de  la 
Guerre,  Chs.  i.  and  xii. 


414 


THE  LAWS  OF  WAR 


teers  have  fallen  into  disuse,  the  seizure  of  merchant  vessels 
by  the  cruisers  of  a hostile  navy  far  more  nearly  resembles 
the  levying  of  a requisition  than  the  indiscriminate  plunder 
which  has  happily  disappeared  in  theory,  and  to  a large 
degree  in  practice,  from  land  warfare.  It  is  further  con- 
tended that  there  is  no  more  humane  method  of  reducing  an 
enemy’s  power  to  support  the  burdens  of  war  than  the  de- 
struction of  his  sea-borne  commerce.  The  doctrine  that 
war  is  now  confined  to  the  forces  of  the  belligerent  states, 
and  affects  individuals  only  in  so  far  as  they  are  agents  of 
the  state,  is  refuted  by  a simple  enumeration  of  the  rights 
possessed  by  an  invader  over  the  non-combatant  inhabitants 
of  the  territory  under  his  military  occupation ; and  in  answer 
to  the  argument  that  the  proposed  change  would  be  but  a 
small  one,  since  the  right  of  capturing  enemy’s  goods  in 
neutral  ships  has  been  already  surrendered,  it  is  pointed 
out  that  under  present  circumstances  a state  which  is  able 
to  deliver  a successful  attack  against  the  mercantile  marine 
of  its  foe,  can  at  the  very  least  drive  enemy  merchants  to  the 
expensive  and  burdensome  resort  of  seeking  for  their  cargoes 
the  shelter  of  neutral  flags. 

A careful  review  of  the  controversy  seems  to  lead  to  the 
conclusion  that,  though  the  advocates  of  exemption  fre- 
quently overstate  their  case,  particularly  when  they  place  it 
on  humanitarian  grounds,  the  balance  of  argument  on  the 
whole  inclines  to  their  side.  The  present  practice  gives 
direct  encouragement  to  attacks  upon  defenceless  merchant 
vessels  in  order  to  obtain  prize-money,  and  thus  tends  to 
foster  the  idea  that  war  may  be  waged  by  honorable  men  for 
their  own  private  advantage.  It  also  carries  with  it  the 
retention  as  prisoners  of  war  of  the  crews  of  the  captured 
ships,  though  they  are  as  truly  non-combatants  as  the  arti- 
sans and  miners  of  an  occupied  province,  whom  no  one 
dreams  of  reducing  to  captivity.  It  may  be  admitted  that 
the  weakening  of  an  enemy  by  cutting  off  his  ocean  trade, 
and  thus  depriving  him  of  his  resources  for  war,  is  one  of 


WITH  REGARD  TO  ENEMY  PROPERTY  AT  SEA.  415 

the  least  objectionable  methods  of  bringing  him  to  terms, 
seeing  that  it  involves  little  or  no  bloodshed,  and  is  free 
from  the  moral  dangers  attendant  upon  the  presence  of  a 
victorious  soldiery  among  the  families  of  a territory  they 
have  overrun.  But  the  cases  in  which  such  a result  is  pos- 
sible are  so  few  that  they  can  hardly  justify  the  retention  of 
a severity  which  will  generally  exercise  an  infinitesimal 
influence  upon  the  issue  of  the  contest.  Since  the  Declara- 
tion of  Paris  in  1856,  ordinary  belligerent  trade  has  been 
safe  at  sea  under  a neutral  flag;  and  since  the  introduction 
of  railways  a country  bordering  upon  civilized  peoples  can 
always  obtain  what  it  most  needs  over  its  land  frontiers  at 
a slightly  increased  cost,  even  though  the  sea  is  closed  to  its 
merchant  vessels.  Only  when  a state  is  wholly  surrounded 
b}r  sea,  or  when  its  boundaries  march  with  those  of  hostile 
or  uncivilized  neighbors,  will  it  be  in  danger  of  losing  the 
sinews  of  war  owing  to  the  inability  of  its  trading  vessels 
to  navigate  the  ocean  in  safety.  Neither  in  the  Franco- 
German  war  of  1870,  nor  in  the  Russo-Turkish  war  of  1877, 
was  the  result  affected  by  the  capture  of  private  property  at 
sea.  In  the  Austro-Prussian  war  of  1866  such  property 
was  left  unmolested  ; and  no  one  has  ventured  to  assert  that 
Austria  would  have  been  able  to  reverse  the  issue,  or  even 
to  prolong  the  struggle,  had  the  navy  which  conquered  at 
Lissa  been  let  loose  upon  Prussian  and  Italian  merchant- 
men. The  only  instance  in  modern  times  in  Avhich  success- 
ful operations  against  an  enemy’s  commerce  so  weakened  his 
resources  that  he  was  forced  to  surrender  sooner  than  would 
otherwise  have  happened  is  found  in  the  great  American 
Civil  War.  But  in  that  case  it  was  the  blockade  of  the 
Southern  ports,  and  the  consequent  exclusion  from  them  of 
neutral  ships,  which  hastened  the  collapse  of  the  Confed- 
eracy, not  the  destruction  of  a mercantile  marine  flying  the 
Southern  flag.  While  the  right  to  blockade  an  enemy’s 
coast  exists,  maritime  superiority  must  tell  enormously  in 
any  war  with  a country  which  cannot  draw  plentiful  supplies 


416 


THE  LAWS  OF  WAR. 


across  its  land  frontiers.  But  it  may  be  doubted  whether 
the  right  to  capture  enemy  cargoes  only  when  found  in 
enemy  vessels  is  of  much  value,  except  in  the  very  rare 
cases  when  the  carrying  trade  of  the  enemy  is  a chief  source 
of  his  strength,  or  neutral  ships  are  unable  to  take  the  place, 
of  his  own  merchantmen.  Sea-power  is  most  important  in 
war.  No  state  can  maintain  a widely  extended  empire  with- 
out it.  It  is  effective  by  cutting  off  supplies  of  arms  and 
munitions,  conveying  troops  and  stores  where  they  are 
wanted  and  keeping  the  enemy  from  doing  the  same,  cap- 
turing coaling  stations  and  islands,  severing  the  communica- 
tions with  colonies  and  distant  possessions,  blockading  ports, 
and  destroying  vessels  of  Avar.  Such  services  as  these  tell 
heavily;  but  in  the  vast  majority  of  Avars  little  advantage 
can  be  gained  by  driving  sea-borne  commerce  out  of  hostile 
and  into  neutral  ships.  We  have  to  consider  whether  it  is 
Avise  and  right  to  keep  up  a rule  ahvays  productive  of  con- 
siderable evil  for  the  sake  of  the  good  it  may  do  in  a feAV 
exceptional  instances;  and  we  shall  probably  decide  that 
the  good  is  too  problematical  to  justify  resistance  to  a change 
Avhich  Avill  at  once  decrease  the  sufferings  caused  by  war 
and  purge  it  still  further  from  the  sordid  taint  of  personal 
enrichment. 


CHAPTER  VI. 


THE  AGENTS,  INSTRUMENTS  AND  METHODS  OF  WARFARE. 

§ 218. 

There  is  great  doubt  and  much  dispute  with  regard  to 
the  lawful  use  of  some  of  the  agents  of  warfare.  Soldiers 
and  sailors  of  the  regular  armies  and  navies  of 

° , The  disputes  as  to 

the  belligerents,  including  fully  organized  mili-  some  of  the  agents 
tia  and  reserves,  are  legitimate  combatants. 

A state  may  avail  itself  of  their  services  to  the  fullest  extent; 
but  the  legality  of  other  agencies  is  not  so  freely  conceded. 
Some  may  be  used  in  certain  circumstances  or  under  certain 
conditions,  but  not  in  other  circumstances  or  under  other 
conditions.  Others  are  forbidden  altogether  according  to 
one  set  of  authorities,  while  another  set  allow  them  either 
unconditionally  or  with  various  restrictions.  The  only 
course  to  follow  in  order  to  attain  satisfactory  results  is  to 
consider  each  of  these  difficult  cases  separately. 

§ 219. 

We  will  take  first  the  much  disputed  question  of  whether 
it  is  lawful  to  use 

Guerilla  Troops, 

and,  if  so,  under  what  conditions  of  leadership,  organization 
and  armament.  They  may  be  described  as  bands  not  be- 
longing to  a regular  army  and  not  under  strict 

i'  . Guerilla  Troops. 

military  discipline,  but  nevertheless  operating 
actively  in  the  field  and  devoting  themselves  entirely  and 
2 e 417 


418 


THE  AGENTS,  INSTRUMENTS 


continuously  to  warlike  avocations  without  intervals  of  the 
peaceful  pursuits  of  ordinary  life.  They  often  perform 
valuable  services  to  their  own  side  by  attacking  convoys  of 
arms  and  provisions  on  the  way  to  the  enemy,  cutting  off  his 
communications,  blowing  up  bridges  and  destroying  railways 
in  bis  rear,  intercepting  his  despatches,  and  harassing  him  in 
the  numberless  ways  that  patriotic  ingenuity  can  suggest  and 
superior  mobility  carry  out.  Knowledge  of  the  country, 
coolness  and  daring  are  the  conditions  of  success  in  guerilla 
warfare.  With  small  means  it  may  inflict  irreparable  dam- 
age upon  the  side  against  which  it  is  directed;  but  those 
who  engage  in  it  are  free  from  many  of  the  restraints  of  more 
regular  combatants,  while  at  the  same  time  their  opportuni- 
ties for  plunder  and  outrage  are  numerous  and  tempting. 
It  is  easy,  therefore,  to  understand  the  unfavorable  opin- 
ions of  partisan  bands  usually  expressed  by  great  military  au- 
thorities. Self-interest,  professional  jealousy  and  humanity 
combine  in  urging  them  to  advocate  the  entire  prohibition 
of  irregular  hostilities,  or  their  reduction  to  a minimum  by 
imposing  severe  conditions  upon  any  recognition  of  their 
legality.  Halleck  settles  the  question  in  a summary  way 
by  calling  those  who  engage  in  partisan  warfare  robbers  and 
murderers,  and  declaring  that  when  captured  they  are  to  be 
treated  as  criminals.1  This  is  the  view  of  a general  rather 
than  a publicist.  It  obtained  largely  in  the  earlier  part  of 
the  eighteenth  century,  when  the  powers  which  kept  large 
standing  armies  on  foot  would  hardly  allow  the  rights  of 
combatants  to  militia.2  Military  pride  accounted  for  it  to 
some  extent,  but  it  was  also  due  to  a natural  and  creditable 
reaction  from  the  license  of  times  before  the  distinction  be- 
tween combatants  and  non-combatants  was  drawn,  and  when 
every  subject  of  one  belligerent  was  free  to  commit  acts  of 
hostility  upon  every  subject  of  the  other.  But  in  the  great 
cycle  of  wars  which  began  with  those  of  the  French  llevolu- 

1 International  Law,  Ch.  XVIII.,  § 8. 

2 Hall,  International  Law,  § 179  and  notes. 


AND  METHODS  OF  WARFARE. 


419 


tion,  the  most  powerful  states  of  the  European  continent 
found  good  reason  to  value  and  rely  upon  the  patriotism  of 
their  populations.  Irregular  troops  came  therefore  to  be 
regarded  as  permissible  even  by  military  men,  who  often 
busied  themselves  with  the  organization  of  the  national 
guard  and  other  popular  levies.  No  further  doubt  was  felt 
as  to  the  legality  of  militia.  It  is  even  included  in  “ l’armee 
proprement  dite  ” by  Article  2 of  the  military  code  adopted 
by  the  Institute  of  International  Law  at  Oxford  in  1880. 1 
The  questions  that  remain  concern  guerilla  troops  and  levies 
en  masse  ; and  with  regard  to  them  the  principle  that  they 
may  exist  is  conceded,  the  degree  of  irregularity  which  is 
permissible  forming  the  only  problem  left  for  solution. 

In  the  Franco-Prussian  war  of  1870  the  French  raised 
irregular  bands  of  Franc-  Tireurs  ; but  the  Prussians  declined 
to  recognize  them  as  lawful  combatants  unless  each  individ- 
ual member  of  them  had  been  personally  called  out  by  legal 
authority  and  wore  a uniform  or  badge  irremovable  and 
sufficient  to  distinguish  him  at  a distance.  At  the  Brussels 
Conference  of  1874 2 the  matter  was  thoroughly  discussed 
from  every  point  of  view.  The  representatives  of  the  great 
military  powers  naturally  desired  to  keep  spontaneous  move- 
ments within  the  narrowest  possible  bounds,  while  the  dele- 
gates from  the  secondary  states,  who  have  to  rely  for  their 
defence  chiefly  upon  the  patriotism  of  their  people,  endeav- 
ored to  give  the  widest  extension  to  the  right  of  resistance 
to  an  invader.  In  the  debates  the  case  of  guerilla  bands 
and  that  of  levies  en  masse  were  a good  deal  confused ; but 
at  length  the  Conference  came  to  see  that  there  was  a great 
difference  between  them,  and  the  attempt  to  cover  both  by 
the  same  rules  was  abandoned.  With  regard  to  the  former, 
the  less  powerful  states,  headed  by  Belgium  and  Switzer- 
land, succeeded  in  foiling  the  efforts  of  Prussia  and  Russia 
to  have  it  declared  that  irregular  volunteers  must  be  under 

1 Tableau  General  de  L'Institut  de  Droit  International,  p.  173. 

2 See  § 185. 


420 


THE  AGENTS,  INSTRUMENTS 


the  Commander-in-Chief.  Finally,  the  Conference  adopted 
a compromise  Avhich  fairly  met  the  views  of  all  parties. 
It  agreed  to  accord  the  rights  of  combatants  to  those  guerilla 
bands  which 

(a)  Have  at  their  head  a person  responsible  for  his  subor- 
dinates. 

( b ) Wear  some  settled  distinctive  badge  recognizable  at  a 
distance. 

(c)  Carry  arms  openly. 

(d)  Conform  in  their  operations  to  the  laws  and  customs  of 
war.1 

It  is  to  be  hoped  that  the  concession  of  the  first  of  these 
conditions  marks  the  definite  abandonment  of  the  theory  that 
members  of  partisan  bodies  must,  individually  and  collec- 
tively, be  summoned  to  arms  by  their  government  and  con- 
nected directly  with  its  military  system.  The  second 
condition  is  just  and  reasonable,  if  it  be  not  interpreted  to 
mean  that  the  distance  must  be  considerable.  A badge  which 
is  visible  as  far  off  as  the  inconspicuous  uniform  of  modern 
infantry  should  be  amply  sufficient.  The  great  point  to  be 
secured  is  its  irremovable  character.  A man  cannot  have  the 
slightest  moral  right  to  the  privileges  of  a combatant,  if  he 
appears  one  minute  as  the  armed  defender  of  his  country  and 
the  next  as  a peaceful  peasant  tilling  his  fields  under  the  pro- 
tection of  the  occupying  army.  The  third  condition  is  justi- 
fied by  the  same  consideration.  The  inhabitants  of  an  invaded 
country  must  choose  whether  they  will  fight  or  whether  they 
will  go  about  their  ordinary  business.  They  cannot  do  both. 
Their  position  is  well  expressed  in  Article  82  of  the  In- 
structions for  the  Government  of  Armies  of  the  United 
States  in  the  Field,  which  declares  that  those  who  commit 
hostilities  “ with  intermitting  returns  to  their  homes  and 
avocations,  or  with  the  occasional  assumption  of  the  sem- 
blance of  peaceful  pursuits  ...  if  captured,  are  not  enti- 

1 British  State  Papers,  Miscellaneous,  No.  1 {1875),  pp.  252-257. 


AND  METHODS  OF  WARFARE. 


421 


tied  to  the  privileges  of  prisoners  of  war,  but  shall  be  treated 
summarily  as  highway  robbers  or  pirates.”  The  fourth 
condition  is  demanded  by  humanity.  Irregular  soldiers 
who  do  not  conform  to  the  laws  of  war  become  mere  crimi- 
nals and  deserve  the  severest  punishment. 

On  the  whole  there  seems  every  reason  to  be  satisfied  with 
these  rules.  They  give  sufficient  scope  to  the  spontaneous 
activities  of  patriotism,  without  neglecting  either  the  claims 
of  mercy  or  a reasonable  consideration  for  the  safety  of  the 
invading  belligerent.  The  lapse  of  several  years,  and  the 
criticisms  of  the  leading  jurists  of  the  civilized  world,  have 
served  but  to  bring  out  the  general  approval  with  which  they 
are  regarded.  They  were  adopted  with  only  a few  altera- 
tions in  form  by  the  Institute  of  International  Law  and  are 
embodied  in  the  second  article  of  its  military  code;1  and 
though  they  are  not  formally  binding  upon  the  powers  who 
took  part  in  the  Brussels  Conference,  it  will  be  very  difficult 
for  any  of  them  in  a future  contest  to  ignore  the  work  of 
their  representatives.  Indeed  Russia  in  her  war  with  Turkey 
of  1877-1878  ordered  all  her  officials  to  observe  them,  and 
distributed  among  her  troops  a kind  of  military  catechism 
which  brought  to  their  knowledge  in  a simple  and  effective 
form  the  principles  on  which  they  were  expected  to  act.2  It 
is  to  he  hoped  that  other  belligerents  will  follow  her  exam- 
ple in  this  respect.  The  only  case  not  covered  by  the  Brus- 
sels Code  is  that  of  isolated  individuals  in  non-occupied 
districts,  who  render  service  to  their  country  by  such  acts  as 
destroying  a road  or  blowing  up  a bridge  and  thus  inrpeding 
the  advance  of  the  enemy.  It  was  brought  forward  by  the 
Delegate  of  Belgium,  but  dropped  without  being  settled, 
owing  to  the  expression  of  a general  opinion  that  it  would 
be  unwise  to  attempt  to  formulate  any  rule  that  would 
cover  it.3 

1 Tableau  General  de  L'Institut  de  Droit  International,  p.  173. 

2 Ibid.,  pp.  165-166. 

3 British  State  Papers,  Miscellaneous.  No.  1 {1875),  p.  265. 


422 


THE  AGENTS,  INSTRUMENTS 


* § 220. 

We  have  next  to  consider  the  subject  of 
Levies  en  masse. 

They  may  be  regarded  historically  in  the  same  light  as 
guerilla  troops ; for  the  account  given  in  the  last  section 
of  the  way  in  which  the  latter  came  to  be  re- 

Levies  en  masse.  J 

garded  as  legitimate  agents  of  warfare  applies 
to  them  also.  But  we  must  not  go  further  and  place  them 
under  the  rules  which  deal  with  partisan  forces.  Not  only 
do  they  differ  from  irregular  bands  in  some  essential  circum- 
stances, but  they  also  differ  so  widely  among  themselves 
that  the  same  provisions  will  not  apply  to  all  of  them. 
When  the  whole  manhood  of  a country  is  called  to  arms  by 
its  government  and  drafted  into  its  armies,  there  can  be  no 
doubt  as  to  the  legality  of  the  process.1  Such  a levy  is 
merely  a specially  drastic  and  comprehensive  method  of 
recruiting.  Its  adoption  is  a matter  of  internal  policy,  not 
of  international  concern.  A good  example  is  to  be  found  in 
the  French  levy  en  masse  of  1793,  which  filled  the  ranks  of 
the  revolutionary  armies  with  brave  and  devoted  soldiers, 
who  had  as  much  right  as  other  soldiers  to  the  privileges  of 
combatants.  Another  kind  of  levy  en  masse  may  take  place 
in  countries  where  the  entire  male  population  is  passed 
through  the  army.  If  at  the  approach  of  an  invader  the 
people  rise,  either  spontaneously  or  in  obedience  to  an  order 
from  the  government,  and  at  once  adopt  the  military  organi- 
zation to  which  they  have  been  trained,  they  are  to  be  re- 
garded as  regular  combatants.  The  Delegate  of  Germany  at 
the  Brussels  Conference  alluded  to  this  as  a possible  case, 
and  pointed  out  that  in  his  own  country  there  was  a Land- 
strum  numbering  nearly  three  million  men,  who  would  form 
the  levy  en  masse  in  case  of  necessity.2 

1 Acollas,  Droit  de  la  Guerre , pp.  49-50. 

2 British  State  Papers,  Miscellaneous , No.  1 ( 1875 ),  p.  263. 


AND  METHODS  OF  WARFARE. 


428 


A different  question  arises  when  the  ordinary  untrained 
inhabitants  of  a non-occupied  district  rise  at  the  approach  of 
an  invader,  and  either  alone  or  in  conjunction  with  regular 
troops  endeavor  to  beat  him  off.  This  is  the  commonest 
case  and  that  about  which  the  most  marked  difference  of 
opinion  exists.  At  the  Conference  of  1874  the  smaller 
powers  contended  almost  passionately  for  its  legality.  The 
Delegate  of  Belgium  declared  that  to  the  patriotism  which 
inspired  such  risings  “all  the  states  here  represented  owe 
those  pages  of  their  history  of  which  they  are  most  proud.” 
After  long  discussion  it  was  agreed  that  “ the  population  of 
a non-occupied  territory,  who  on  the  approach  of  the  enemy, 
of  their  own  accord  take  up  arms  to  resist  the  invading 
troops,  . . . shall  be  considered  as  belligerents  if  they  re- 
spect the  laws  and  customs  of  war.”  These  words  form  part 
of  Article  10  of  the  Code  which  received  the  assent  of  the 
Conference.1  It  was  rightly  deemed  that  the  masses  of  a 
popular  levy  would  be  sufficient  evidence  of  their  own  hos- 
tile character,  even  though  no  badges  were  worn  by  the 
individuals  of  whom  they  were  composed. 

A case  apart  from  all  the  others,  and  least  likely  of  any 
to  be  treated  with  leniency,  occurs  when  the  inhabitants  of 
occupied  districts  break  out  into  a general  insurrection 
against  the  invaders.  The  army  of  occupation  is  obliged 
for  the  sake  of  its  own  safety  to  treat  such  insurgents  with 
the  utmost  severity.  The  Code  of  the  Brussels  Conference 
is  silent  on  the  subject  of  the  fate  in  store  for  them,  and  so 
is  the  Manual  of  the  Institute  of  International  Law,  while 
Article  85  of  the  Instructions  for  the  Armies  of  the  United 
States  renders  them  liable  to  the  death  penalty  under  the 
name  of  “war-rebels.”  At  Brussels  the  constant  conflict 
between  the  views  of  the  great  military  powers  and  the 
secondary  states  became  more  marked  than  usual  when  their 
treatment  was  discussed.  The  German  Delegate  wished  to 
subject  them  by  express  enactment  “ to  the  laws  of  war  in 
1 British  State  Papers,  Miscellaneous,  No.  1 (1875),  pp.  255,  321. 


424 


THE  AGENTS,  INSTRUMENTS 


force  in  the  occupying  army.”  But  the  representative  of 
the  Netherlands  stoutly  objected  on  the  ground  that  “to 
deliver  over  in  advance  to  the  justice  of  the  enemy  those 
men  who  from  patriotic  motives  and  at  the  risk  of  their 
lives  expose  themselves  to  all  the  dangers  consequent  upon 
a rising,  would  be  an  act  which  no  government  would  dare 
to  bring  forward.”1  In  consequence  of  this  disagreement 
no  mention  was  made  of  the  case  in  the  projected  military 
code ; but  there  can  he  no  doubt  that  the  invader  is  allowed 
by  the  laws  of  war  to  treat  all  concerned  in  such  risings  as 
unauthorized  combatants.  Indeed  this  proposition  was  not 
seriously  controverted.  The  objections  raised  were  directed 
against  any  verbal  recognition  of  it  which  would  seem  tanta- 
mount to  a surrender  of  high-souled  patriots  by  their  own 
government  to  the  enemy’s  executioners. 

§ 221. 

We  pass  on  to  deal  with  the  employment  of 
Savage  Troops. 

They  may  be  embodied,  drilled  and  disciplined,  as  soldiers 
in  the  regular  armies  of  civilized  powers,  or  they  may  be 
used  as  allies  and  auxiliaries,  organized  in  their 

Savage  troops.  0 

own  way  and  under  the  command  of  their  own 
chiefs.  In  the  latter  case  the  amount  of  control  which  can 
be  exercised  over  them  is  very  small ; and  it  is  much  to  be 
wished  that  International  Law  could  prohibit  the  acceptance 
of  assistance  from  such  unsatisfactory  allies.  But  nothing 
of  the  kind  has  been  done.  Civilized  states  receive  with- 
out scruple  the  aid  of  savage  tribes  in  their  warfare  with  bar- 
barous or  semi-barbarous  foes.  In  their  Tonquin  expedition 
of  1883-1884  the  French  employed  “Yellow  Flags”  against 
the  hostile  “Black  Flags.”  In  the  numerous  “little  wars” 
carried  on  by  the  British  in  Africa  the  proceedings  of  “ friend- 
1 British  State  Papers,  Miscellaneous , No.  1 (1875),  p.  263. 


AND  METHODS  OF  WARFARE. 


425 


lies  ” form  an  almost  invariable  incident  of  every  struggle, 
and  the  United  States  are  glad  to  accept  the  services  of 
Indians  who  will  fight  against  their  brothers  in  the  fierce 
warfare  of  the  Western  plains.  Even  when  both  the  prin- 
cipal belligerents  are  civilized,  they  have  sometimes  made 
use  of  barbarian  auxiliaries  in  their  struggles.  Throughout 
the  last  century  the  English  and  French  habitually  employed 
Red  Indian  Tribes  in  their  North  American  wars.  The  Brit- 
ish let  them  loose  against  the  revolted  Colonists,  and  the 
Colonists  did  their  best  to  turn  them  against  Great  Britain. 
The  Russians  sent  Circassians  into  Hungary  in  1848,  and 
the  Turks  flooded  Bulgaria  with  Bashi-Bazooks  in  the  war 
of  1877.  Each  of  these  instances  gave  a greater  shock  to 
the  civilized  world  than  its  predecessor;  and  we  may  per- 
haps venture  to  hope  that  the  force  of  enlightened  opinion 
will  before  long  compel  the  leading  members  of  the  family 
of  nations  to  refrain  from  putting  savages  or  semi-savages 
into  the  field,  unless  their  foes  themselves  are  barbarians. 
For  the  disuse  of  savage  allies  in  these  latter  cases  we  shall 
probably  have  to  wait  till  the  feeling  of  human  brotherhood 
has  grown  much  stronger  than  it  is  to-day. 

There  can  be  no  doubt  about  the  legality  of  taking  recruits 
from  barbarous  races  and  forming  them  into  troops  and  regi- 
ments. If  they  are  placed  under  military  discipline,  organized 
as  part  of  the  army  of  a civilized  state,  and  led  by  civilized 
officers,  they  may  be  used  without  the  slightest  violation  of 
the  laws  of  war.  The  United  States  have  their  red-skinned 
cavalry,  the  French  their  Turco  brigades,  the  British  their 
Indian  army.  There  is  hardly  a power  possessed  of  a colonial 
empire,  or  ruling  over  martial  races,  which  does  not  enrol 
native  troops.  International  Law  neither  forbids  their  en- 
listment nor  places  limitations  upon  their  employment.  It 
would  certainly  be  humane  to  reserve  them  for  use  against 
border  tribes  and  in  warfare  with  people  of  the  same  degree 
of  civilization  as  themselves.  But  no  such  restraints  at 
present  exist,  and  Europe  may  yet  have  to  pay  the  penalty 


426 


TFtE  AdEtfTS,  INSTRUMENTS 


for  its  remissness  by  suffering  the  horrors  of  a struggle  for 
the  Empire  of  the  East,  in  which  Hillmen  from  the  Himala- 
yas, Usbegs  from  Central  Asia,  and  Arabs  from  Algeria  work 
their  will  upon  its  brightest  provinces  and  most  defenceless 
populations. 

§ 222. 

We  must  now  consider  the  legality  of 

Spies. 

They  are  defined  in  Article  19  of  the  Brussels  Code  as 
“those  who  acting  secretly  or  under  false  pretences,  collect 
or  try  to  collect  information  in  districts  occu- 
pied by  the  enemy  with  the  intention  of  com- 
municating it  to  the  opposing  force.”  Article  22  declares 
that  soldiers  who  have  penetrated  within  the  enemy’s  lines 
without  concealing  or  disguising  their  military  character 
are  not  to  be  considered  as  spies,  neither  are  “ military  men 
(and  also  non-military  persons  carrying  out  their  mission 
openly)  charged  with  the  transmission  of  despatches  either 
to  their  own  army  or  to  that  of  the  enemy.”  It  also  ex- 
cludes individuals  sent  in  balloons  to  carry  despatches  or 
perform  other  services.  Article  20  lays  down  that  “a  spy, 
if  taken  in  the  act,  shall  be  tried  and  treated  according  to 
the  laws  in  force  in  the  army  which  captures  him,”  and 
Article  21  adds  that  the  treatment  of  a prisoner  of  war  is  to 
be  accorded  to  the  spy  who,  after  carrying  out  his  mission, 
and  rejoining  the  army  to  which  he  belongs,  is  subsequently 
captured  by  the  enemy.  These  rules  embody  the  best  and 
most  humane  modern  practice,  and  indeed  go  somewhat 
beyond  it  in  insisting  upon  a trial  of  the  captured  spy,  who  is 
often  shot  or  hanged  on  the  spot  with  scant  ceremony.  They 
further  mark  the  definite  abandonment  of  the  strange  theory 
adopted  by  the  Germans  during  the  siege  of  Paris  in  1870- 
1871,  that  those  who  reconnoitred  from  balloons  were  guilty  of 
espionage  and  therefore  liable  to  the  penalty  of  death. 


AND  METHODS  OF  WARFARE. 


427 


The  law  on  the  subject  of  spies  is  clear  and  undisputed. 
They  may  be  used,  but  they  take  their  lives  in  their  hands 
when  they  venture  upon  their  secret  missions.  Here  we 
might  leave  the  subject,  were  it  not  that  certain  statements 
found  in  the  works  of  many  text-writers  cannot  be  allowed 
to  pass  without  challenge.  Their  authors  seem  to  imagine 
that  to  be  a spy  is  necessarily  dishonorable.  They,  there- 
fore, assert  that  a sovereign  has  no  right  to  require  or  even 
to  ask  for  such  a service  from  his  subjects,  though  he  may 
accept  it  if  voluntarily  offered;  and  some  of  them  doubt 
whether  he  is  not  tainted  with  dishonor  if  he  holds  out  in- 
ducements and  rewards  in  order  to  encourage  people  to  obtain 
for  him  secret  information.1  These  statements  show  great 
confusion  of  thought  and  judgment.  Some  spies  are  double 
traitors  who  sell  their  own  side  to  the  enemy  for  money, 
and  then  in  turn  sell  the  enemy  by  giving  him  false  intel- 
ligence. They  are  among  the  vilest  of  mankind;  and  only 
slightly  below  them  in  villainy  come  those  who  keep  their 
disgraceful  bargain,  and  are  content  to  be  guilty  of  treach- 
ery without  the  addition  of  fraud.  But.  there  are  others 
who  risk  their  lives  in  order  to  obtain  by  secret  means 
information  of  the  greatest  value  to  their  own  side ; and* 
they  are  perfectly  honorable  as  well  as  courageous  men. 
What  moral  obliquity  can  there  be  in  penetrating  within  the 
enemy’s  lines  disguised  as  a pedler,  and  furtively  sketching 
his  batteries  ? Military  men  know  well  enough  that  there 
are  spies  and  spies ; and  when  they  stop  to  think  they  soon 
perceive  that  some  kinds  of  spy-service  deserve  to  be  re- 
garded as  highly  meritorious.  This  point  is  brought  out  in 
a significant  passage  in  Napier’s  Peninsula  War.2,  The 
author,  in  describing  how  admirably  Wellington  was  served 
in  the  matter  of  information,  says : “ He  had  a number  of 
spies  among  the  Spaniards  who  were  living  within  the 
French  lines;  a British  officer  in  disguise  constantly  visited 

1 e.g.  Yattel,  Droit  des  Gens,  Liv.  III.,  § 179  ; Halleck,  International  Law, 
Ch.  XVIII.,  §§  26,  28.  2 Vol.  IV.,  Bk.  XIV.,  pp.  220-221. 


428 


THE  AGENTS,  INSTRUMENTS 


the  French  armies  in  the  field;  a Spanish  state-counsellor 
living  at  the  headquarters  of  the  first  corps  gave  intelli- 
gence from  that  side,  and  a guitar-player  of  celebrity,  named 
Fuentes,  repeatedly  making  his  way  to  Madrid  brought  back 
advice  from  thence.  . . . With  the  exception  of  the  state 
spy  at  Victor’s  headquarters,  who  being  a double  traitor  was 
infamous,  all  the  persons  thus  employed  were  very  merito- 
rious. The  greater  number,  and  the  cleverest  also,  were 
Spanish  . . . who,  disdaining  rewards  and  disregarding 
danger,  acted  from  a pure  spirit  of  patriotism,  and  are  to 
be  lauded  alike  for  their  boldness,  their  talent  and  their 
virtue.”  Considerations  such  as  these  should  serve  to  miti- 
gate the  harsh  judgments  sometimes  pronounced  on  spies 
as  a class,  as  if  they  were  all  alike.  It  is  impossible  to 
arrive  at  any  reasoned  conclusions  unless  we  distinguish,  as 
Napier  does,  between  those  who  carry  devotion  and  patriot- 
ism to  the  point  of  risking  their  lives  in  cold  blood  and 
without  any  of  the  excitement  of  combat,  in  order  to  obtain 
within  the  enemy’s  lines  information  of  the  utmost  impor- 
tance to  their  country’s  cause,  and  those  who  betray  the 
secrets  of  their  own  side  for  the  sake  of  a reward  from  its 
foes.  The  first  are  heroes,  the  second  are  traitors ; and  it  is 
the  height  of  injustice  to  visit  both  with  the  same  condem- 
nation. Military  reasons  demand  that  the  right  to  execute 
spies,  if  caught,  should  exist;  but  unless  considerations  of 
safety  imperatively  demand  the  infliction  of  the  last  penalty, 
a general  should  commute  it  into  imprisonment.  It  should, 
however,  be  clearly  recognized  that  in  many  cases  the  exe- 
cution, though  necessary  for  the  safety  of  those  who  inflict 
it  and  the  success  of  their  cause,  involves  no  more  stigma 
than  a fatal  wound  upon  the  battle-field.  Both  Captain 
Hale  and  Major  Andr4,  for  instance,  were  rightly  executed 
as  spies ; 1 but,  as  their  part  in  the  deeds  for  which  they 
suffered  had  nothing  dishonorable  in  it,  they  were  not  dis- 
honored by  their  death. 

1 Halleck,  International  Law  (Baker’s  ed.),  II.,  32-34,  and  notes. 


AND  METHODS  OF  WARFARE. 


429 


§ 223. 

Hitherto  we  have  dealt  with  agents  employed  in  land  war- 
fare. It  is  now  time  to  turn  to  nautical  affairs  and  consider 
the  case  of 

Privateers. 

They  may  be  defined  as  vessels  owned  and  manned  by  private 
persons,  but  empowered  by  a commission  from  the  state, 
called  a Letter  of  Marque,  to  carry  on  hostili- 
ties at  sea.  The  law  declared  the  commission 
to  be  revocable  for  bad  conduct  on  the  part  of  the  privateer; 
and  other  means,  such  as  the  lodgment  of  security  and  lia- 
bility to  search  by  public  vessels  of  the  country  whose  flag 
she  carried,  were  taken  to  secure  that  she  did  not  violate  the 
laws  of  war.  But  in  spite  of  all  precautions,  privateers 
were  always  a most  unsatisfactory  force.  When  it  was  first 
held  abou tithe  beginning  of  the  fifteenth  century  that  some 
authorization  from  a belligerent  was  necessary  before  a pri- 
vate vessel  could  perform  hostile  acts,  such  authorizations 
were  given  to  all  who  applied  for  them.  Thus  neutrals  as 
well  as  subjects  of  the  belligerents  acquired  a right  to  cruise 
against  commerce ; and,  as  privateers  were  allowed  to  keep 
for  themselves  all  or  nearty  all  the  proceeds  of  the  prizes 
they  took,  privateering  became  a lucrative  trade  for  the  law- 
less and  adventurous  spirits  who  abounded  among  sea-faring 
populations.  The  scandal  grew  so  great  as  modern  trade 
developed,  that  in  the  eighteenth  century  most  of  the  states 
of  Europe  passed  laws  for  the  punishment  of  any  of  their 
subjects  who  took  Letters  of  Marque  authorizing  depreda- 
tions upon  the  commerce  of  any  power  with  which  they  were 
at  peace.  In  the  United  States  similar  provisions  were 
placed  upon  the  Statute  Book  by  Congress  in  1797  and  1816. 
These  legislative  acts  have  become  general,  and  they  have 
practically  put  a stop  to  privateering  by  neutral  subjects. 
There  have  been  only  two  instances  in  modern  times  of  the 
offer  by  a belligerent  to  accept  the  assistance  of  neutral 


430 


THE  AGENTS,  INSTRUMENTS 


privateers,  and  they  are  both  connected  with  the  American 
continent.  The  first  took  place  in  1845,  when  Mexico,  at 
the  beginning  of  her  war  with  the  United  States,  proclaimed 
her  willingness  to  give  Letters  of  Marque  to  all  who  applied 
for  them,  and  the  second  in  1861,  when  the  Government  of 
the  Confederacy  made  a similar  offer  at  the  commencement 
of  the  Civil  War  in  the  American  Union.  But  in  neither 
case  did  a neutral  subject  seek  the  proffered  authorization,1 
though  it  appears  from  a despatch  of  Mr.  Buchanan,  dated 
June  13,  1847,  that  he  was  then  under  the  impression  that 
Spaniards  had  accepted  Mexican  commissions,  for  he  de- 
clares that  such  persons  will  be  treated  as  pirates  according 
to  the  provisions  of  the  treaty  of  1795  between  the  United 
States  and  Spain.2 

Laws  and  treaties  such  as  those  referred  to  above  have  put 
a stop  to  privateering  of  the  most  indefensible  kind.  There 
remains,  however,  the  use  as  commerce  destroyers  of  private 
vessels  belonging  to  belligerent  subjects  and  fitted  out  by  them 
for  purposes  of  private  gain.  During  the  latter  half  of  the 
eighteenth  century  some  attempts  were  made  to  get  rid  of 
this  form  of  privateering  along  with  the  other.  With  regard 
to  the  advisability  of  its  abolition,  opinion  was  divided  both 
in  the  Old  World  and  in  the  New.  Franklin  succeeded  in 
embodying  in  the  treaty  of  1785  between  the  United  States 
and  Prussia  an  article  by  which  the  contracting  powers  agreed 
not  to  make  use  of  privateers  of  any  kind  if  they  should  be 
at  war  with  each  other.3  But  Jefferson  held  that  they 
were  a cheap  and  effective  weapon  of  offence,  and  went 
so  far  as  to  say  in  a letter  to  Monroe  of  Jan.  1,  1815, 
“Let  nothing  be  spared  to  encourage  them.”  His  views 
prevailed ; and  it  has  been  as  much  the  settled  policy  of  the 
United  States  to  object  to  the  abolition  of  privateering  as  to 

1 Dana,  Note  173  to  his  edition  of  Wheaton’s  International  Law. 

■ 2 Wharton,  International  Law  of  the  United  States,  § 385  ; Treaties  of  the 
United  States,  p.  1010. 

8 Treaties  of  the  United  States,  p.  906. 


AND  METHODS  OF  WARFARE. 


431 


forward  the  exemption  of  private  property  from  maritime 
capture.  The  latter  would  necessarily  carry  with  it  the 
former,  but  the  former  is  possible  without  the  latter.  The 
object  of  American  policy  has  been  to  secure  that  the  two 
changes  shall  come  together,  if  they  come  at  all.1  In 
Europe,  on  the  other  hand,  opinion  steadily  moved  in  the 
direction  of  disapproval  of  privateers,  and  a strong  feeling 
grew  up  in  favor  of  putting  an  end  to  them  without  waiting 
for  further  ameliorations  of  the  law  of  capture  at  sea.  They 
were  freely  used  in  the  great  struggle  between  England  and 
Revolutionary  and  Imperialist  France;  but  both  Nelson  and 
Codrington  condemned  them,  and  the  latter  did  not  hesi- 
tate to  charge  the  privateers  of  both  sides  with  letting  each 
other  alone  and  hoisting  whatever  colors  were  necessary  to 
effect  the  capture  of  any  merchantmen  that  came  in  their 
way.  He  declared  that  their  proceedings  were  “nothing 
short  of  piracy.”2  The  spirit  that  animated  these  words 
became  general,  and  at  the  commencement  of  the  Crimean 
War  in  1854  England  and  France  notified  their  determina- 
tion to  rely  upon  public  armed  ships  alone,  and  not  to  issue 
Letters  of  Marque  to  private  individuals.  They  were  in- 
duced to  take  this  course  partly  by  considerations  of  human- 
ity and  a desire  to  save  neutral  commerce  as  far  as  possible 
from  the  injuries  inflicted  on  it  by  belligerents,  and  partly 
from  fear  lest  Russia  should  be  able  to  obtain  the  services 
of  a strong  fleet  of  American  privateers.3  During  the  war 
both  sides  refrained  from  authorizing  private  vessels  to  cruise 
-against  commerce,  and  at  its  close  the  abolition  of  Privateer- 
ing was  decreed  by  the  first  article  of  the  Declaration  of 
Paris.  We  have  already  seen  how  the  Government  of  the 
United  States  strove  to  couple  with  this  act  the  further 
reform  of  exempting  private  property  from  belligerent  seiz- 

1 Wharton,  International  Law  of  the  United  States,  § 385. 

2 Napier,  Peninsula  War,  Vol.  IV.,  Appendix,  p.  497. 

3 Twiss,  Belligerent  Right  on  the  High  Seas  since  the  Declaration  of  Paris, 

pp.  10-12. 


432 


THE  AGENTS,  INSTRUMENTS 


ure  unless  it  were  contraband  of  war.1  Its  efforts  were 
unsuccessful,  and  its  assent  was  withheld  from  the  Declara- 
tion ; but  it  used  no  privateers  in  its  fierce  struggle  with 
the  seceding  South,  and  none  have  been  sent  forth  to  prey 
on  sea-borne  trade  in  any  of  the  wars  which  have  taken  place 
between  civilized  nations  since  1856.  It  can  hardly  be 
doubted  that  no  more  will  be  heard  of  them  in  future  wars. 
Enlightened  opinion  condemns  them,  and  the  interests  of 
commerce  are  opposed  to  their  continued  existence.  The 
powers  which  have  declined  to  sign  the  Declaration  of  Paris 
may  possibly  have  escaped  the  technical  obligation  to  refrain 
from  using  them;  but  they  are  not  likely  to  run  counter  to 
the  general  sense  of  the  civilized  world,  and  bring  down 
upon  themselves  as  belligerents  the  ill-will  of  all  neutral 
powers  who  possess  a maritime  trade.  And  even  if  they 
were  willing  to  take  the  risk,  the  cost  of  an  effective  cruiser 
is  now  so  enormous  that  few  private  individuals  would  be 
able  to  meet  it  with  all  the  additional  risks  of  capture  and 
loss  as  well. 


§ 224. 


Our  last  heading  in  connection  with  the  agents  of  war- 
fare is 

A Volunteer  Navy. 


This  is  a new  product  of  creative  ingenuity,  and  it  can  best 
be  explained  by  a brief  account  of  the  circumstances  which 
first  brought  it  before  the  world  with  a claim 
a \ oiunteer  Na\ j . ^ pe  regarcje(j  as  a naval  force  of  undoubted 

legality.  In  July,  1870,  at  the  beginning  of  the  great  war 
between  France  and  Germany,  Prussia  endeavored  to  make 
up  for  the  weakness  of  its  state  navy,  by  utilizing  its  mer- 
chant ships  for  warlike  purposes  under  special  conditions. 
The  patriotism  of  seamen  and  ship  owners  was  appealed  to, 
and  they  were  invited  to  place  themselves  and  their  vessels 

1 See  § 116. 


AND  METHODS  OF  WARFARE. 


433 


at  the  service  of  the  Fatherland.  The  Volunteer  Navy  thus 
formed  was  to  carry  the  German  flag,  and  was  to  be  under 
naval  command  and  naval  discipline.  The  officers  were  to 
receive  commissions  from  the  state  for  the  period  of  the 
war,  and  the  crews  were  in  like  manner  to  be  temporarily 
enrolled  in  the  government  service.  The  owners  were  to 
receive  a certain  sum  as  hire  and  to  be  compensated  if  the 
vessels  were  destroyed  while  under  the  control  of  the  naval 
authorities.  If  prizes  were  taken,  the  sailors  who  took  part 
in  the  capture  were  to  be  rewarded  by  money  payments.1 
These  offers  and  appeals  do  not  seem  to  have  been  very 
enthusiastically  received  by  the  seamen  and  traders  of 
Germany,  for  throughout  the  war  no  ship  of  the  proposed 
Volunteer  Navy  ever  put  to  sea.  But  outside  the  Father- 
land  the  plan  attracted  a good  deal  of  attention.  The  French 
Government  denounced  it  as  a disguised  form  of  privateer- 
ing and  a gross  violation  of  the  Declaration  of  Paris.  The 
British  Ministry,  when  called  upon  to  say  how  they  would 
regard  it,  published  an  opinion  of  the  Law  Officers  of  the 
Crown,  who  had  come  to  the  cautious  conclusion  that  there  was 
“a  substantial  difference  ” between  it  and  the  system  against 
which  the  first  article  of  the  Declaration  of  1856  was  directed, 
and  declared  that  they  could  not  object  to  the  Prussian 
Decree.2  Many  publicists  of  repute  have  discussed  the 
matter,  but  no  general  agreement  has  been  reached.  Calvo 
and  Hall  condemn  the  proposal,3  but  Bluntschli,  Twiss, 
aud  Geffcken  see  no  serious  objection  to  it  on  the  score 
of  legality.4 

It  is  impossible  to  suppose  that  the  question  raised  in 
1870  was  settled  by  the  collapse  of  the  Prussian  project. 
Maritime  states  will  seek  some  unobjectionable  way  of  util- 

1 Wharton,  International  Law  of  the  United  States,  § 385. 

2 British  State  Papers,  Franco-German  War,  No.  1 {1871),  p.  22. 

3 Calvo,  Droit  International,  § 2086  ; Hall,  International  Laic,  § 181. 

4 Bluntschli,  article  in  Benue  de  Droit  International,  Vol.  IX.,  p.  552; 
Twiss,  Belligerent  Bight  on  the  High  Seas  since  the  Declaration  of  Paris, 
pp.  12-14  ; Geffcken,  Note  to  Heffter,  Droit  International  de  L' Europe,  p.  279, 


434 


THE  AGENTS,  INSTRUMENTS 


izing  in  war  the  services  of  their  mercantile  marine.  A 
movement  will  be  carried  on  in  naval  affairs  similar  to  that 
whereby  militia  and  volunteer  corps  have  gradually  won 
recognition  in  land  warfare.  In  the  winter  of  1877-1878, 
when  there  was  imminent  danger  of  hostilities  between 
England  and  Russia,  the  latter  power  accepted  the  offer  of 
a patriotic  association  to  create  a Volunteer  Fleet,  the  ves- 
sels of  which  were  to  be  purchased  by  private  subscription, 
but  made  over  to  state  control  during  the  contemplated  war, 
and  commanded  by  officers  of  the  Imperial  Navy.  Fortu- 
nately, the  questions  at  issue  were  settled  without  further 
fighting  by  the  Treaty  of  Berlin;  but  the  Russian  Volun- 
teer Fleet  survived  the  circumstances  which  gave  it  birth, 
and  exists  at  the  present  time.  It  receives  an  annual  sub- 
sidy from  the  government  on  certain  conditions  as  to  the 
number  and  efficiency  of  the  cruisers,  and  some  of  its  ships 
are  regularly  employed  in  carrying  convicts  and  soldiers  from 
the  Black  Sea  ports  to  Siberia.1  The  Sultan  has  been  con- 
strained by  diplomatic  pressure  to  regard  them  as  merchant 
vessels,  in  order  that  they  may  freely  pass  the  Dardanelles 
and  the  Bosphorus,  which  are  closed  in  time  of  peace  to  the 
men-of-war  of  foreign  states ; 2 and  this  circumstance  will 
probably  prove  embarrassing  should  Russia  wish  to  claim 
for  them  the  position  of  lawful  combatants  in  some  future 
struggle.  Great  Britain  and  America  have  adopted  a some- 
what different  system.  The  former  led  the  way  in  1887  by 
entering  into  agreements  with  the  Cunard  Line,  the  White 
Star  Line,  and  other  great  steamship  companies,  whereby, 
on  consideration  of  an  annual  subsidy,  they  agreed  to  sell 
or  let  certain  swift  vessels  to  the  government  at  a fixed  price 
and  on  short  notice,  and  to  build  new  ships  according  to 
plans  to  be  approved  by  the  Admiralty,  who  were  to  be  at 
liberty  to  acquire  them  on  terms  similar  to  those  accepted 
in  the  case  of  the  existing  fleet.  Half  the  seamen  on  board 
the  vessels  subject  to  these  agreements  were  to  be  engaged 
1 Statesman's  Year  Book  for  1894,  p.  891.  2 See  § 109. 


AND  METHODS  OF  WARFARE. 


435 


from  the  Royal  Naval  Reserve,  and  the  Admiralty  was  to 
have  the  right  of  placing  on  board  fittings  and  other  arrange- 
ments which  would  facilitate  the  speedy  equipment  of  the 
vessels  as  cruisers  in  the  event  of  war.1  In  1892  the  Gov- 
ernment of  the  United  States  acquired  powers  of  a like  kind 
over  the'  vessels  of  the  American  Line.  There  is  nothing  in 
these  agreements  to  which  the  most  scrupulous  legalist  can 
object.  Should  the  vessels  subject  to  them  be  used  in  war, 
they  will  be  added  to  the  national  navy  by  hire  or  purchase, 
and  will  be  manned  by  officers  and  men  belonging  to  the 
public  forces.  The  practical  working  of  the  Russian  plan 
is  not  so  clear ; but  if  it  means  nothing  more  than  the  pay- 
ment for  armed  and  duly  commissioned  cruisers  by  voluntary 
subscriptions  instead  of  taxes,  no  publicists  will  venture  to 
denounce  it  as  a violation  of  the  Declaration  of  Paris.  The 
legality  of  a Volunteer  Navy  must  depend,  like  the  legality 
of  a Volunteer  Army,  upon  the  closeness  of  its  connection 
with  the  state,  and  the  securities  it  affords  for  a due  observ- 
ance of  the  laws  of  war. 

§ 225. 

In  early  ages  and  among  barbarous  peoples  all  methods  of 
destruction  appear  to  have  been  used  indifferently  against 
an  enemy,  and  any  restraints  that  were  prac-  Prohibition  of  some 

...  , . . P instruments  of 

tised  seem  to  have  arisen  from  the  idea  that  a warfare  and  condi- 

...  , ..  tional  legality 

brave  and  generous  warrior  should  not  avail  of  others, 
himself  of  new  and  unusual  weapons  or  tactics.  Thus  the 
Zulus,  after  the  battle  of  Ulundi  in  1878,  expressed  their 
surprise  that  such  courageous  and  honorable  foemen  as  the 
British  should  have  condescended  to  use  breechloading 
rifles,  which  fired  six  times  while  they  were  firing  once  with 
their  muzzle-loaders,  and  the  Arab  prisoners  taken  at  El  Teb 
in  1884  characterized  as  an  unworthy  trick  the  rear  attack 
by  which  they  had  been  defeated.  Civilized  belligerents, 

1 British  State  Papers,  Subvention  of  Merchant  Steamers  for  State  Pur- 
poses, 1887. 


436 


THE  AGENTS,  INSTRUMENTS 


however,  have  not  been  swayed  by  similar  feelings.  Men 
of  science  rival  one  another  in  the  invention  of  new  and 
more  potent  instruments  of  destruction,  and  states  compete 
for  exclusive  rights  in  them.  The  government  that  deems 
it  possesses  machinery  for  taking  life  more  efficacious  than 
anything  to  be  found  in  the  arsenals  of  its  neighbors  keeps 
secret  the  processes  of  manufacture,  and  guards  with  the 
most  zealous  care  the  knowledge  which  it  fondly  believes 
will  one  day  be  transmuted  into  power.  Restrictions  upon 
the  use  of  means  of  slaughter  have  indeed  been  introduced 
into  the  laws  of  warfare;  but  they  are  based  on  the  idea  of 
humanity,  not  on  that  of  fairness.  It  is  now  an  accepted 
principle  that  one  side  may  put  only  so  much  stress  upon 
the  other  as  is  sufficient  to  destroy  its  power  of  resistance. 
This,  when  applied  to  instruments  and  methods  of  destruc- 
tion, forbids  those  which  inflict  more  suffering  than  is  nec- 
essary in  order  to  kill  or  disable  an  enemy.  It  also  limits 
and  conditions  the  employment  of  means  which  are  not  alto- 
gether prohibited.  Side  by  side  with  it  there  is  a strong 
and  healthy  feeling  against  treachery,  and  the  two  together 
are  responsible  for  several  practical  rules  which  will  be  dis- 
cussed in  the  following  sections.  It  will  obviously  be  im- 
possible to  go  through  all  the  means  and  instruments  of 
warfare,  nor  is  it  necessary  to  do  so.  The  prohibitions  are 
comparatively  few,  and  what  is  not  forbidden  is  allowed. 
All  that  it  will  be  needful  to  do  is  to  take  the  chief  restric- 
tions and  deal  with  them  one  by  one. 

§ 226. 

We  must  first  note  that 

Assassination  is  forbidden. 

The  life  of  some  one  person  is  often  of  the  last  importance 
to  a cause,  and  when  that  is  the  case  its  enemies  are  under 
Assassination  great  temptations  to  get  rid  of  its  champion  by 

prohibited.  murder,  if  all  other  means  fail.  Such  assassi- 

nations seem  to  have  been  sometimes  regarded  with  approval 


AND  METHODS  OF  WARFARE. 


437 


by  the  leading  nations  of  the  ancient  world;  witness  the 
praise  bestowed  by  Roman  writers  upon  the  legendary  deed 
of  Mutius  Scsevola.  Grotius  draws  an  elaborate  distinction 
between  “assassins  who  violate  express  or  tacit  faith  ” and 
“ those  who  are  not  bound  by  any  such  tie  of  good  faith  ” ; 1 
and  complicates  his  reasoning  by  refinements  based  on  his 
theory  of  a Law  of  Nature  and  its  relation  to  the  Law  of 
Nations,  and  his  division  of  wars  into  those  which  are  regu- 
lar and  formal  and  those  which  are  irregular  and  informal. 
As  he  clearly  sees,  the  presence  or  absence  of  treachery  is 
the  all-important  matter;  but  it  is  in  the  attendant  circum- 
stances of  the  deed  rather  than  in  the  persons  of  those  who 
do  it  that  we  must  seek  for  its  justification  or  condemnation. 
Modern  International  Law  distinguishes  between  dashes 
made  at  a ruler  or  commander  by  an  individual  or  a little 
band  of  individuals  who  come  as  open  enemies,  and  similar 
attempts  made  by  those  who  disguise  their  enemy  character. 
A man  who  steals  secretly  into  the  opposing  camp  in  the 
dark,  and  makes  alone,  or  with  others,  a sudden  attack  in 
uniform  upon  the  tent  of  king  or  general,  is  a brave  and 
devoted  soldier.  A man  who  obtains  admission  to  the  same 
tent  disguised  as  a pedler,  and  stabs  its  occupant  when  lured 
into  a false  security,  is  a vile  assassin.  The  attempt  to  pro- 
cure such  a murder  is  as  criminal  as  the  murder  itself. 
Article  148  of  the  Instructions  issued  in  1863  to  the  armies 
of  the  United  States  declares  with  perfect  justice  that  “Civi- 
lized nations  look  with  horror  upon  offers  of  rewards  for  the 
assassination  of  enemies,  as  relapses  into  barbarism.”  The 
Brussels  Conference  of  1874  numbered  “ murder  by  treachery 
of  individuals  belonging  to  the  hostile  nation  or  army  ” 
among  the  means  of  injuring  the  enemy  that  were  forbidden 
by  Article  13  of  its  projected  Code ; and  Article  8 of  the 
Manual  of  the  Institute  of  International  Law  forbids  “treach- 
erous attempts  upon  the  life  of  an  enemy.” 


1 De  Jure  Belli  ac  Pads,  III.,  IV.,  XVIII. 


438 


THE  AGENTS,  INSTRUMENTS 


§ 227. 

Another  important  restraint  is  indicated  by  the  words 

The  use  of  poison  is  condemned. 

This  was  one  of  the  earliest  prohibitions.  Savages  use 
poisoned  weapons ; but  civilized  mankind  has  expelled  them 
from  its  warfare,  and  recoils  with  horror  from 

Poison  condemned. 

the  poisoning  of  food  or  water,  or  the  wilful 
contamination  of  the  enemy  with  disease.  The  secrecy  and 
cruelty  associated  with  death  by  poison,  and  the  danger  that 
innocent  people  may  be  made  to  suffer  along  with  or  instead 
of  foes,  will  serve  to  account  for  the  deep-seated  abhorrence 
of  such  a method  of  destruction.  Grotius  condemns  it  as 
contrary  to  the  sentiment  of  the  best  and  most  advanced 
nations,1  and  the  other  text-writers  agree  with  him.  Modern 
Military  Codes  mention  it  only  to  exclude  it  from  the  permis- 
sible means  of  injuring  an  enemy.2 


§ 228. 

We  may  add  to  the  statements  already  made  the  proposi- 
tion that 

Projectiles  which  inflict  useless  suffering  are  prohibited. 


This  rule  springs  directly  from  the  principle  that  a belliger- 
ent may  not  inflict  more  pain  and  injury  than  is  necessary 
„ . , to  destroy  the  adversary’s  power  of  resistance. 

Projectiles  which  ^ a 

iniijct  useless  One  of  its  applications  is  settled  by  express 

den-  agreement.  In  1868  all  the  powers  of  Europe, 

with  the  exception  of  Spain,  sent  delegates  to  a Military 
Commission  at  St.  Petersburg,  the  result  of  which  was  the 
signature  of  a Declaration  prohibiting  the  use  of  explosive  pro- 


1 Be  Jure  Belli  ac  Pads,  III.,  IV.,  XV. -XVII. 

2 e.g.  Manual  of  the  Institute  of  International  Law , see  Tableau  General 
de  L'Institut  de  Droit  International , p.  174. 


AND  METHODS  OP  WARFARE. 


439 


jectiles  weighing  less  than  fourteen  ounces  (400  grammes).1 
The  signatory  powers  are  bound  by  this  instrument  in  wars 
among  themselves,  and  it  is  hardly  conceivable  that  a civi- 
lized country  like  the  United  States  of  America  will  wish 
to  avail  itself  of  its  position  outside  the  agreement  to  use 
in  any  future  struggle  rifle  bullets  which  inflict  incurable 
wounds  and  shatter  limbs  as  well  as  disable  them.  Other 
prohibitions  of  a similar  kind  rest  on  general  custom.  For 
instance  the  use  of  what  is  technically  called  “ langridge  ” 
has  been  condemned  for  more  than  a century.  The  term 
includes  nails,  brass  buttons,  bits  of  glass,  knife-blades, 
and  any  kind  of  rubbish  that  can  be  fired  out  of  a gun.  The 
objection  to  such  projectiles  flows  from  the  fact  that  they 
inflict  jagged  wounds,  and  cause  more  suffering  than  bullets, 
without  being  one  whit  more  effective  in  preventing  com- 
batants from  continuing  the  fight.  Chain  shot  and  split 
balls  have  been  regarded  as  unlawful,  and  there  has  been 
a long  and  sometimes  amusing  controversy  about  red-hot 
shot.  Military  casuists  have  been  found  to  maintain  that  it 
is  lawful  in  defence  and  unlawful  in  aggression,  lawful  for 
forts  and  unlawful  for  ships.  But  these  nice  questions  of 
belligerent  ethics  have  been  relegated  to  the  sphere  of  purely 
intellectual  exercise  by  the  invention  of  rifled  cannon.  The 
shot  furnace  is  no  longer  a part  of  the  ordinary  equipment 
of  forts  and  line-of-battle  ships,  and  red-hot  shot  is  almost 
as  completely  a thing  of  the  past  as  the  cross-bow  which  was 
once  anathematized  by  a Council  of  the  Church,  and  the 
arquebus  which  the  Chevalier  Bayard  so  unsparingly  con- 
demned.2 Many  of  these  polemics  were  due  to  a confusion 
of  ideas.  Men  could  not  make  up  their  minds  whether 
means  of  destruction  were  to  be  deemed  unlawful  because  of 
their  newness,  or  their  unfairness,  or  their  secrecy,  or  their 
cruelty,  and  they  generally  solved  the  difficulty  by  object- 
ing to  what  they  disliked,  and  regarding  as  unobjectionable 

1 Hertslet,  Treaties , XIII.,  79-80. 

2 Maine,  International  Latv , Lect.  VII. 


440 


THE  AGENTS,  INSTRUMENTS 


what  suited  their  tastes  or  worked  to  their  advantage. 
Now,  however,  the  old  difficulties  have  vanished,  on  account 
of  the  acceptance  by  all  civilized  nations  of  the  principle 
that  the  only  legitimate  object  of  warfare  is  to  weaken  the 
forces  of  the  enemy  and  induce  him  to  sue  for  terms,  by  de- 
priving him  of  the  men  and  means  for  carrying  on  the  con- 
flict. The  legality  of  weapons  is  measured,  not  by  their 
destructiveness,  but  by  the  amount  of  pain  they  inflict  com- 
pared with  the  amount  of  disablement  they  cause.  Men 
may  be  wounded  or  slain  wholesale,  but  they  may  not  be 
tortured.  The  use  of  torpedoes,  for  example,  is  perfectly 
lawful,  though  they  may  hui’l  a whole  ship’s  crew  into  eter- 
nity without  a moment’s  warning,  but  the  deliberate  inser- 
tion of  a drop  of  sulphuric  acid  into  the  head  of  a bullet, 
from  which  it  would  exude  on  contact  with  human  flesh, 
would  be  execrated  as  a gross  violation  of  the  laws  of  civi- 
lized warfare.  The  Brussels  Conference  did  but  voice  the 
general  sentiment  of  the  leading  nations  of  the  world,  when 
it  prohibited  in  Article  13  of  its  Military  Code  “the  use  of 
arms,  projectiles  or  substances  which  may  cause  unneces- 
sary suffering.” 

§ 229. 

The  next  statement  to  be  made  and  discussed  is  that 

Devastation  is  generally  unlawful , but  may  be  justified  under 
special  circumstances. 

The  savage  customs  of  ancient  warfare  allowed  unlimited 

O 

destruction  in  an  enemy’s  territory.  We  have  already  seen 
Devastation  gener-  how  in  comparatively  recent  times  better  prac- 
unlawfui"but]us-  tices  were  gradually  introduced,1  till  now  an 

tified  in  special  . <■  , , 

cases.  invader,  instead  of  being  tree  to  destroy  a coun- 

try, finds  himself  charged  with  the  duty  of  protecting  prop- 
erty and  industry  within  it.  Grotius  endeavored  to  restrict 
the  old  right  of  unlimited  destruction  by  laying  down  that 
1 See  §§  185,  191,  202. 


AND  METHODS  OF  WARFARE. 


441 


only  “such  ravage  is  tolerable  as  in  a short  time  reduces  the 
enemy  to  seek  peace,”  and  it  is  evident  that  in  his  opinion 
the  better  course  would  be  to  abstain  from  it  altogether.  1 
The  publicists  of  the  last  century  endeavored  to  introduce 
further  restrictions.  Vattel,  for  instance,  says  that  the 
utter  destruction  of  a hostile  territory  is  authorized  and 
excused  in  two  cases  only.  The  first  is  when  there  exists 
a “ necessity  for  chastising  an  unjust  and  barbarous  nation, 
for  checking  its  brutality  and  preserving  ourselves  from  its 
depredations,”  and  the  second  exists  when  there  is  evident 
need  “for  making  a barrier,  for  covering  a frontier  against 
an  enemy  who  cannot  be  stopped  in  any  other  way.”2  In 
discussing  this  he  practically  adds  as  a third  case  the  de- 
struction that  may  be  required  in  order  to  carry  on  field 
operations  or  the  works  of  a siege.  There  can  be  no  doubt 
about  this  last  instance.  The  laws  of  war  allow  the  suburbs 
of  a town  to  be  destroyed  in  order  to  keep  the  besiegers  from- 
effecting  a lodgment  in  them,  or  afford  free  scope  to  the 
action  of  artillery.  Buildings  may  be  demolished  and  trees 
cut  down  to  strengthen  a position,  and  even  villages  burnt 
to  cover  a retreat.  But  such  devastation  must  be  absolutely 
necessary  for  the  attainment  of  some  direct  and  immediate 
military  end.  It  is  not  enough  that  there  should  be  merely 
a vague  expectation  of  possible  advantage  to  accrue  from 
the  act. 

In  warfare  with  barbarous  or  semi-barbarous  races  the  first 
exception  allowed  by  Vattel  is  often  acted  upon.  It  is  com- 
monly supposed  that  a vast  impression  is  made  upon  the 
minds  of  savages  by  driving  off  their  cattle,  destroying  their 
crops,  and  setting  fire  to  the  thatch  of  their  mud  huts.  And 
if  the  latter  operation  is  j^erformed  by  shells,  and  as  an  in- 
cidental consequence  a good  many  of  the  inhabitants  are 
slain,  the  impression  created  is  held  to  be  so  deep  and  last- 
ing that  an  abiding  sense  of  the  justice  and  power  of  the 

1 De  Jure  Belli  ac  Pads,  III. , XII. 

2 Droit  des  Gens,  III.,  §§  167-16g, 


442  THE  AGENTS,  INSTRUMENTS 

white  man  can  be  confidently  expected  to  grow  up  in  the 
bosoms  of  all  the  survivors.  It  may  be  so.  The  surprises 
of  anthropology  are  many;  and  it  is  possible  that  a mass  of 
evidence  will  be  accumulated  to  show  that  conduct  which 
would  rouse  in  civilized  mankind  the  passions  of  savages 
tends  to  create  in  the  savage  an  enlightened  sense  of  the 
beauties  of  civilization.  Meanwhile  we  may  perhaps  he 
permitted  to  doubt,  and  to  express  a hope  that  retaliatory 
expeditions  against  barbarous  tribes  could  be  a little  less 
inflexible  in  their  justice  and  a little  more  discriminate  in 
their  punishments.  We  cannot,  however,  say  that  destruc- 
tion and  ravage  are  forbidden  to  them  by  the  law  of  nations. 
Usage  decides ; and  usage  is  as  we  have  described  it. 

Vattel’s  second  exception  has  no  longer  any  force.  A 
belligerent  who  devastated  his  enemy’s  territory  in  order 
to  make  a barrier  and  cover  his  own  frontier,  would  now  be 
held  up  to  the  execration  of  the  civilized  world.  The 
ravaging  of  the  Palatinate  in  1689  was  justified  by  the 
French  Government  on  this  ground;  but,  as  Vattel  himself 
says  with  regard  to  it,  “All  Europe  resounded  with  invec- 
tives and  reproaches.”  We  have  advanced  a long  way  in  the 
direction  of  humanity  towards  foes  since  that  time,  and  what 
was  denounced  then  would  not  be  tolerated  now.  Excuses 
far  better  than  the  supposed  necessity  of  making  a barrier 
have  not  sufficed  to  save  much  less  terrible  proceedings  from 
general  reprobation.  The  burning  of  the  public  buildings 
of  Washington  by  the  British  forces  in  1814  has  not  been 
justified  at  the  bar  of  history  by  the  plea  of  retaliation,1  and 
few  would  care  to  rest  the  fame  of  Sherman  and  Sheridan 
upon  their  devastations  in  Georgia,  South  Carolina  and  the 
Shenandoah  Valley,  though  it  was  alleged  in  their  favor  that 
they  destroyed  the  storehouse  and  granary  of  the  Confed- 
eracy. 

But  if  a population  is  willing  to  consign  to  destruction  its 
own  homes  and  possessions  rather  than  allow  an  enemy  to 

1 See  § 202. 


AND  METHODS  OF  WARFARE. 


443 


make  use  of  them,  International  Law  in  no  way  forbids  such 
a piece  of  heroic  self-sacrifice.  The  action  of  the  two  hun- 
dred thousand  inhabitants  of  Moscow  who  in  1812  quitted 
their  city,  and  allowed  it  to  be  given  to  the  flames  in  order 
that  it  might  not  afford  safe  winter  quarters  to  the  invading 
French,  has  always  been  regarded  as  a splendid  exhibition 
of  patriotism.  Even  utter  destruction  of  large  tracts  of 
fertile  country  has  been  applauded,  when  it  was  the  only 
way  to  stop  the  advance  of  a relentless  enemy.  Thus  when 
the  Dutch  in  the  crisis  of  their  war  of  independence  cut  on 
several  occasions  the  dykes  that  kept  out  the  sea,  and  re- 
stored whole  districts  to  the  waves  rather  than  allow  the 
Spaniards  to  subdue  them,  they  were  not  deemed  to  have 
violated  the  laws  of  war,  but,  on  the  contrary,  were  praised 
for  their  determination  and  devotion.  A broad  distinction 
must  be  drawn  between  devastation  by  an  enemy  and 
devastation  by  a population  to  repel  an  enemy.  A high- 
spirited  nation  may  prefer  material  ruin  to  political  degrada- 
tion. Its  noble  resolution  will  evoke  universal  admiration 
and  respect.  But  very  different  feelings  await  the  invader 
who  strives  to  advance  his  cause  by  turning  a smiling  coun- 
try into  a barren  wilderness.  Such  warfare  is  unworthy  of 
civilized  beings  and  calls  for  the  sternest  reprobation.  The 
only  destruction  permissible  is  that  which  is  “imperatively 
required  by  the  necessity  of  war.”1  Even  in  bombardments 
it  is  now  deemed  necessary  to  spare  as  far  as  possible 
churches,  museums  and  hospitals,  and  not  to  direct  the 
artillery  upon  the  quarters  inhabited  by  civilians,  unless  it 
is  impossible  to  avoid  them  in  firing  at  the  fortifications  and 
military  buildings.2  Open  and  undefended  places  should 
not  be  bombarded  at  all ; and  recent  proposals  to  extort  large 
sums  from  rich  and  defenceless  coast  towns,  by  the  agency 
of  a squadron  whose  guns  should  lay  them  in  ruins  in  case 

1 Brussels  Code , Art.  13. 

2 Brussels  Code , Arts.  15-17  ; Manual  of  the  Institute  of  International 
Law , Arts.  31-34. 


444 


THE  AGENTS,  INSTRUMENTS 


of  refusal,  are  retrogade  and  barbarous.1  The  power  which 
acted  upon  them  would  expose  itself  to  severe  reprisals, 
incur  the  enmity  of  neutrals,  whose  property  would  assuredly 
he  damaged  in  the  general  destruction,  and  in  all  probability 
render  the  vessels  entrusted  with  the  task  an  easy  prey  to  a 
defending  fleet  when  their  ammunition  was  exhausted  by 
their  abominable  work.  There  is  little  real  danger  of  a 
return  to  the  cruel  and  predatory  coast  warfare  of  the  Middle 
Ages. 

§ 230. 

The  last  rule  we  have  to  lay  down  with  regard  to  the 
methods  adopted  in  warfare  is  that 

Stratagems  are  allowable  unless  they  violate  good  faith. 

Tricks  and  deceits  are  strictly  forbidden  in  the  mutual  inter- 
course of  peaceful  life,  but  in  war  they  are  permitted,  and 
stratagems  every  belligerent  must  he  on  his  guard  against 
whenetheyCvionte  them.  Their  lawfulness  depends  upon  the 
good  faith.  answer  to  the  question  whether  they  are  viola- 

tions of  express  or  tacit  understandings.  In  peace  we  ex- 
pect our  fellows  to  treat  us  in  an  open  and  considerate  man- 
ner. In  war  we  expect  advantage  to  he  taken  of  our  defects 
and  misfortunes.  But  even  in  the  midst  of  hostilities  there 
is  a general  understanding  that  belligerents  shall  refrain 
from  attempts  to  hoodwink  one  another  with  regard  to  cer- 
tain matters,  and  it  is  as  immoral  to  violate  these  conven- 
tions as  it  would  he  to  lie  and  cheat  in  ordinary  society.  A 
national  or  regimental  flag,  for  instance,  means  that  those 
who  use  it  are  members  of  the  forces  of  the  state  to  which  it 
belongs,  and  any  attempt  on  the  part  of  foes  to  hoist  it  in 
battle  for  the  purpose  of  luring  troops  to  their  destruction 
is  justly  characterized  by  the  American  Instructions  as  “an 
act  of  perfidy  by  which  they  lose  all  claim  to  the  protection 


1 Hall,  International  Law , §§  140,*  186. 


AND  METHODS  OF  WARFARE. 


445 


of  the  laws  of  war.”1  Similarly  it  is  a breach  of  a univer- 
sally accepted  understanding,  and  therefore  infamous,  to  use 
the  Geneva  Cross  as  a protection  for  magazines,  to  attract 
an  adversary  by  signals  of  distress  and  then  attack  him,  or 
to  withdraw  an  army  under  cover  of  negotiations  for  its 
surrender.  But  other  stratagems,  such  as  leading  the  enemy 
into  an  ambush,  deceiving  him  by  false  intelligence,  or  mak- 
ing feints  in  order  to  withdraw  his  attention  from  the  real 
point  of  attack,  are  perfectly  innocent,  because  they  are  no 
violations  of  the  tacit  agreement  which  underlies  civilized 
warfare,  and  every  general  knows  that  he  must  guard 
against  them  by  his  own  vigilance.  The  understanding 
to  which  we  refer  includes  two  somewhat  arbitrary  rules, 
which  are  nevertheless  generally  received  and  must  there- 
fore be  acted  upon  by  honorable  belligerents.  A ship  of 
war  may  approach  another  vessel  under  false  colors,  but  it 
must  run  up  its  true  flag  before  it  fires  the  first  shot;  and 
troops  may  be  clothed  in  the  uniform  of  the  enemy  in  order 
to  creep  unrecognized  or  unmolested  into  his  position,  but 
during  the  actual  conflict  they  must  wear  some  distinctive 
badge  to  mark  them  off  from  the  soldiers  they  assail. 

1 Instructions  for  the  Government  of  Armies  of  the  United  States  in  the 
Field,  Art.  65. 

* 


CHAPTER  VII. 

THE  NON-HOSTILE  INTERCOURSE  OF  BELLIGERENTS. 

§ 231. 

During  war  a certain  amount  of  more  or  less  amicable 
intercourse  takes  place  between  the  belligerents.  We  can- 
Non-ho.stiie  inter-  n°t  ca^  ^ pacific,  because  it  presupposes  the 
ri°edronCduri>ngCar  existence  of  hostilities.  On  the  other  hand, 
war-  it  certainly  is  not  warlike,  for  it  involves  at 

least  the  temporary  cessation  of  active  operations  on  the 
part  of  the  combatants,  or  some  of  them.  We  are  therefore 
obliged  to  characterize  it  as  non-hostile,  an  epithet  which 
has  the  merit  of  expressing  exactly  what  we  mean,  though 
it  is  by  no  means  smooth  and  euphonious.  The  amount  of 
such  intercourse  which  takes  place  depends  upon  the  wishes 
of  the  belligerents,  and  therefore  varies  not  only  from  war 
to  war,  but  also  in  different  periods  of  the  same  war  and  in 
different  parts  of  the  same  theatre  of  hostilities.  It  is 
divided  into  several  kinds,  the  chief  of  which  we  will  con- 
sider in  due  order.  It  is  impossible  to  give  all  because  they 
are  so  numerous  and  so  frequently  modified  by  the  incessant 
changes  of  warfare.  Such  words  and  phrases  as  “safe- 
guards,” “licenses  to  reside,”  “grants  of  asylum,”  and 
others  of  a like  kind,  carry  with  them  their  own  explana- 
tion. Moreover,  the  things  they  signify  are  hardly  impor- 
tant enough  to  be  placed  in  a class  by  themselves. 

446 


NON-HOSTILE  INTERCOURSE  OF  BELLIGERENTS.  447 


§ 282. 

The  first  of  the  commercia  belli  with  which  we  have  to  do 
are 

Flags  of  Truce. 

These  are  white  flags  used  by  one  side  as  a signal  that  it 
desires  a parley  with  the  other.  Article  48  of  the  Brussels 
Code  declares  that  “An  individual  authorized 

, r*  i i 11*  r -ii  Flags  of  Truce. 

by  one  ol  the  belligerents  to  conier  with  the 
other,  on  presenting  himself  with  a white  flag,  accompanied 
by  a trumpeter,  bugler  or  drummer,  or  also  by  a flag-bearer, 
shall  be  recognized  as  the  bearer  of  a flag  of  truce.”  If  nec- 
essary, an  interpreter  may  be  added.  The  party  enjoys 
“the  right  of  inviolability,”  that  is  to  say,  its  members  may 
not  be  subjected  to  personal  injury  or  detained  as  prisoners. 
But  the  obligation  to  refrain  from  molesting  them  is  not 
absolute.  A commander  may  give  notice  to  his  opponent 
that  he  will  for  a certain  period  decline  to  receive  flags  of 
truce,  and  if  the  enemy  continues  to  send  them  in  spite  of 
this  notification,  they  may  be  fired  upon.  Their  bearers  may 
be  blindfolded  in  cases  where  there  is  no  question  of  exclud- 
ing them,  and  they  are  held  bound  in  honor  not  to  take  ad- 
vantage of  their  position  for  the  purpose  of  obtaining  military 
information,  whether  or  no  physical  means  are  used  to  hinder 
them.  But  if  important  movements  are  on  foot,  and  it  is 
impossible  that  they  should  have  failed  to  acquire  some 
knowledge  of  them  by  the  evidence  of  their  own  senses,  they 
may  be  kept  in  honorable  detention  for  a little  while,  till 
the  operations  are  over,  or  till  it  is  no  longer  necessary  to 
keep  them  secret.  Anything  approaching  to  treachery  on 
the  part  of  the  bearer  of  a flag  of  truce  deprives  him  of  per- 
sonal inviolability.  If  he  purchases  plans,  or  incites  sol- 
diers to  desertion,  or  attempts  to  sketch  defences,  he  may  be 
deprived  of  liberty,  or,  in  extreme  cases,  executed  as  a spy. 
These  rules  apply  mutatis  mutandis  to  naval  warfare.  At 
sea  flags  of  truce  are  sent  in  boats,  and  are  met  by  boats  fly- 


448  NON-HOSTILE  INTERCOURSE  OF  BELLIGERENTS. 


ing  a similar  flag  and  conducted  to  the  ship  on  Avhich  the 
officer  in  command  is  to  be  found. 

§ 238. 

Another  mode  of  intercourse  between  belligerents  is  by 

Cartels , 

which  are  agreements  entered  upon  during  Avar,  or  in  antici- 
pation of  it,  in  order  to  regulate  such  intercourse  as  is  to  be 
allowed  in  the  course  of  the  struggle.  They 

Cartels.  00  J 

prescribe  the  formalities  to  be  observed  in  the 
exchange  of  prisoners,  the  reception  of  flags  of  truce,  and 
the  interchange  of  postal  or  telegraphic  communications. 
Whatever  regulations  are  laid  doAvn  in  them  should  be  ob- 
served in  good  faith,  and  without  any  attempt  to  Avrest  them 
from  their  humane  purposes,  and  turn  them  into  means  of 
obtaining  information  or  gaining  military  advantage.  Car- 
tels for  the  exchange  of  prisoners  are  incidents  of  all  Avars 
betAveen  civilized  powers,  and  the  arrangements  connected 
therewith  are  made  and  supervised  by  officers  called  com- 
missaries, Avho  are  appointed  by  each  belligerent,  and  alloAved 
to  reside  in  the  country  of  the  enemy.  Cartel-ships  are 
vessels  employed  in  the  conveyance  of  prisoners  to  and  from 
the  place  of  exchange.  They  are  free  from  hostile  seizure 
on  the  conditions  set  forth  when  Ave  were  considering  the 
extent  to  Avhich  public  vessels  of  the  enemy  are  liable  to 
capture.1 

§ 234. 

The  next  subject  to  be  considered  in  connection  Avith  the 
relaxations  of  the  strict  rule  of  non-intercourse  in  warfare 
may  be  dealt  with  under  the  head  of 

Passports  and  Safe- Conducts, 

which  can  be  described  as  permissions  to  travel  given  to 
subjects  of  the  enemy.  Passports  are  granted  by  a belliger- 

1 See  § 205. 


NON-HOSTILE  INTERCOURSE  OF  BELLIGERENTS.  449 


ent  government,  and  are  generally  made  to  apply  to  all 
territory  under  its  control.  Safe-conducts  are  granted  either 
by  a belligerent  government  or  by  its  naval  and  passports  an(i 
military  officers.  They  apply  to  a particular  8afe-conducts- 
place  only,  and  any  commander  may  grant  them  in  the 
area  under  his  control.  Both  passports  and  safe-conducts 
are  revocable  for  good  reason ; but  if  they  are  revoked  the 
grantee  should  be  allowed  to  withdraw  in  safety.  A limit 
of  time  may  be  named  in  these  instruments,  and  a special 
purpose  may  be  mentioned  as  the  only  one  for  which  the 
permission  is  given.  Whatever  conditions  are  imposed  must 
be  carefully  complied  with,  and  both  sides  are  held  to  the 
strictest  good  faith.  A safe-conduct  may  be  given  in  respect 
of  goods  only,  in  which  case  it  is  a permission  to  remove 
them  without  restriction  as  to  the  agent,  but  with  an  implied 
condition  that  he  shall  not  be  dangerous  or  otherwise  obnox- 
ious to  the  grantor.  It  is  alwaj-s  understood  that  neither 
passports  nor  safe-conducts  are  transferable. 

§ 235. 

It  often  happens,  especially  in  maritime  hostilities,  that 
a belligerent  grants 

Licenses  to  trade , 

which  enable  their  holders  to  carry  on  a commerce  forbidden 
by  the  ordinary  laws  of  war  or  by  the  legislation  of  the 
grantor.  Licenses  are  general  when  a state 
gives  permission  to  all  its  own  subjects,  or  to  Llcenses  t0  tiade' 
all  neutral  or  enemy  subjects,  to  trade  in  particular  articles 
or  at  particular  places,  special  when  permission  is  granted 
to  particular  individuals  to  trade  in  the  manner  described  by 
the  words  of  the  documents  they  receive.  Both  kinds  re- 
move all  disabilities  imposed  because  of  the  war  upon  the 
trade  in  respect  of  which  they  are  given.  The  holders  can 
sue  and  be  sued  in  the  courts  of  the  grantor,  and  are  allowed 


450  NON-HOST1LE  INTERCOURSE  OE  BELLIGERENTS. 

to  enter  into  contractual  relations  with  his  subjects  to  the 
extent  necessary  in  order  to  act  on  the  terms  of  the  license. 
General  licenses  can  be  granted  only  by  the  supreme  power 
in  the  state.  Special  licenses  generally  emanate  from  the 
same  source ; but  officers  in  chief  authority  on  land  or  sea 
can  issue  permissions  to  trade'  in  the  district  or  with  the 
force  under  their  command.  Such  licenses,  however,  afford 
no  protection  outside  the  limits  of  the  grantor’s  control. 
When  the  commander  of  an  invading  force  issues  a procla- 
mation to  the  people  of  the  country  requesting  them  to  sell 
him  supplies,  he  gives  them  an  implied  license  to  trade  in 
his  camp. 

During  the  war  between  Great  Britain  and  France  at  the 
end  of  the  eighteenth  and  the  beginning  of  the  nineteenth 
century,  a very  large  number  of  licenses  were  granted  by 
both  the  belligerents.  This  was  especially  the  case  towards 
the  end  of  the  struggle,  when  Napoleon’s  attempt  to  ruin 
England  by  excluding  her  manufactured  goods  and  colonial 
produce  from  the  continent  of  Europe  had  brought  about  an 
enormous  rise  in  the  price  of  such  commodities  in  all  the 
countries  controlled  by  him.  In  1811  sugar  was  seven 
francs  a pound  in  Paris,  while  in  London  it  cost  barely  a 
tenth  of  that  sum,  and  the  price  of  coffee,  raw  cotton  and 
indigo  in  the  two  places  followed  about  the  same  proportion. 1 
As  a natural  consequence  an  enormous  system  of  smuggling 
arose.  Bourienne  describes  how,  at  Hamburg,  brown  sugar 
was  first  placed  in  gravel  pits  and  then  passed  in  carts 
through  the  city  barriers  covered  with  a thin  laj’er  of  sand, 
and  how,  when  this  device  was  found  out,  hearses  were  filled 
with  it,  till  the  sudden  and  remarkable  increase  in  the  num- 
ber of  funerals  aroused  suspicion  and  led  to  discovery.  We 
are  not  surprised,  after  this,  to  find  the  statement  that 
w licenses  were  procured  at  a high  price  by  whoever  was  rich 
enough  to  pay  for  them,”  or  to  learn  that  great  and  wide- 

1 Rose,  article  in  Historical  Beview  for  October,  1893,  on  Napoleon  and 
English  Commerce, 


NON-HOSTILE  INTERCOURSE  OF  BELLIGERENTS.  451 


spread  discontent  was  caused  by  the  prohibition  of  English 
goods.1  If  Napoleon  had  his  Berlin  and  Milan  Decrees, 
Great  Britain  had  her  Orders  in  Council.  She  too  sold  or 
gave  licenses  in  order  to  mitigate  the  rigor  of  her  own  pro- 
hibitions, while  unfortunate  neutrals,  chief  among  whom 
was  the  United  States,  found  their  commerce  restricted  by 
both  sides.  Under  these  circumstances  Prize  Courts  were 
frequently  employed  in  deciding  upon  questions  of  the 
construction  of  licenses,  and  the  extent  to  which  the  permis- 
sions given  in  them  reached.  A whole  system  of  jurispru- 
dence grew  up  with  reference  to  the  subject,  but  most  of  it 
is  now  obsolete.  The  vast  strides  made  by  commerce  since 
the  beginning  of  the  century  have  led  to  a corresponding 
increase  of  its  influence  on  maritime  law.  The  Declaration 
of  Paris  laid  down,  in  1856,  that  enemy  goods  not  contra- 
band of  war  might  be  freely  carried  on  neutral  ships ; and  it 
is  quite  certain  that  in  future  maritime  struggles  neutral 
powers  will  not  again  submit  to  such  treatment  as  they  re- 
ceived from  France  and  England  in  the  crisis  of  their  great 
conflict  for  commercial  supremacy. 

It  follows  from  what  has  just  been  said  that  much  of  the 
received  law  of  licenses  has  little  more  than  an  antiquarian 
interest.  We  will,  therefore,  pass  over  its  details,  and  be 
content  to  give  only  those  parts  of  it  which  may  possibly  be 
again  enforced.  Misrepresentation  of  facts  is  held  to  annul 
a license,  and  an  individual  who  has  received  one  by  name 
cannot  transfer  it  to  others,  though  he  may  act  through  an 
agent.  But  if  it  is  made  negotiable  by  express  words,  it 
may  be  transferred  like  any  other  instrument.  Slight  devia- 
tions from  the  quantity  or  quality  of  the  goods  specified  will 
not  forfeit  the  license,  nor  will  a slight  alteration  in  the 
character  of  the  vessel ; but  the  use  of  a ship  of  one  national- 
ity when  another  was  mentioned  will  cause  forfeiture.  De- 
viation from  the  specified  course,  or  a delay  in  arrival 
beyond  the  specified  time,  may  be  excused  when  caused  by 

1 Bourienne,  Memoirs  (Bentley’s  ed.).  II.,  XXXIII.,  et  seq. 


452  NON-HOSTILE  INTERCOURSE  OF  BELLIGERENTS. 

stress  of  weather  or  some  other  unavoidable  calami ty;  but 
delay  beyond  the  time  fixed  for  the  commencement  of  a voy- 
age will  not  be  allowed. 

§ 236. 

No  war  of  any  magnitude  is  likely  to  continue  long 
without  being  marked  by  one  or  more 

Capitulations , 

which  is  the  name  given  to  agreements  for  the  surrender 
upon  conditions  of  a fortified  place,  or  a military  or  naval 
force.  The  conditions  are  set  forth  in  the 

Capitulations.  . . 

terms  ot  the  agreement,  and  vary  from  a prom- 
ise to  spare  the  lives  of  those  who  surrender  to  a grant  of 
“all  the  honors  of  war”  to  the  vanquished,  a phrase  which 
means  that  they  are  allowed  to  depart  unmolested  with  colors 
displayed,  drums  beating  and  their  arms  in  their  hands.  It 
is  not  often  that  such  ample  terms  are  obtained,  nor,  on  the 
other  hand,  does  a mere  promise  to  spare  life  confer  any 
benefit  upon  the  conquered  beyond  what  is  theirs  already  by 
the  laws  of  modern  warfare.  Generally  the  conditions  of 
capitulations  range  between  the  two  extremes,  being  lenient 
or  severe  according  to  the  nature  and  extent  of  the  straits 
to  which  those  who  surrender  have  been  reduced,  and  the 
degree  of  necessity  the  victors  are  under  of  ending  their 
operations  quickly.  Sometimes,  too,  admiration  for  an 
heroic  defence  will  cause  more  generous  terms  to  be  granted 
than  the  military  situation  would  enable  the  beaten  side  to 
exact.  This  was  the  case  at  Appomattox,  when  the  remnant 
of  Lee’s  army  surrendered  to  the  Union  forces  on  April  9, 
1865,  six  days  after  the  fall  of  Richmond  and  the  destruction 
of  the  hopes  of  the  Southern  Confederacy  in  the  great  Ameri- 
can Civil  War.  Grant  could  certainly  have  enforced  far 
harsher  conditions  than  the  dismissal  to  their  own  homes  of 
the  foes  who,  in  his  own  words,  “had  fought  so  long  and 
valiantly.” 1 

1 U,  S.  Grant,  Personal  Memoirs , II.,  489. 


NON-HOSTILE  INTERCOURSE  OF  BELLIGERENTS.  453 

Every  officer  in  chief  command  of  an  army,  fleet  or  forti- 
fied post,  is  competent  to  enter  into  a capitulation  with 
regard  to  the  forces  or  places  under  his  control;  but  if  he 
makes  stipulations  affecting  other  portions  of  the  field  of 
hostilities,  they  must  he  ratified  by  the  commander-in-chief 
before  they  become  valid.  Moreover,  the  ratification  of  the 
supreme  authorities  in  the  state  is  required  when  a com- 
mander, supreme  or  subordinate,  makes  a capitulation  at 
variance  with  the  terms  of  his  instructions,  or  includes 
political  conditions  among  the  articles  he  agrees  to.  Stipu- 
lations in  excess  of  the  powers  of  those  who  make  them  are 
called  Sponsions , and  are  null  and  void  unless  the  principals 
on  each  side  accept  them.  In  default  of  such  acceptance,  an 
agreement  of  the  - kind  we  are  considering  has  no  validity, 
and  all  acts  done  under  it  must  be  reversed  as  far  as  possi- 
ble. A good  example  of  a Sponsion  is  to  be  found  in  the 
Capitulation  entered  into  by  General  Sherman  in  April, 
1865,  with  General  Johnston,  the  commander  of  the  last 
Confederate  army  in  the  field  east  of  the  Mississippi.  On 
condition  that  the  Confederate  soldiers  should  immediately 
disband  and  deposit  their  arms  in  the  arsenals  of  their  re- 
spective states,  it  provided  that  the  state  governments  which 
submitted  to  the  Federal  authorities  were  to  be  recognized, 
and  the  people  of  the  Confederacy  guaranteed  their  political 
rights  and  franchises  as  citizens  of  the  Union.  These 
conditions  went  beyond  the  sphere  of  military  action,  and 
were  clearly  in  advance  of  the  general’s  authority,  though  he 
had  some  reason  to  believe  that  they  would  prove  acceptable.1 
The  government  of  Washington  was,  however,  guilty  of  no 
act  of  bad  faith  when  it  repudiated  them. 

The  much-discussed  capitulation  of  El  Arish  is  an  in- 
stance of  an  agreement  made  by  an  officer  contrary  to  his 
instructions,  though,  as  it  happened,  in  ignorance  of  their 
terms.  The  circumstances  were  most  peculiar,  and,  since 
accusations  of  dishonorable  behavior  have  been  made  on  both 

1 W.  T.  Sherman,  Memoirs , II.,  Cli.  XXIII. 


454  NON-HOSTILE  INTERCOURSE  OF  BELLIGERENTS. 

sides,  it  is  desirable  to  examine  the  case  and  show  by  a 
recapitulation  of  its  extraordinary  incidents  that  no  breach 
of  good  faith  took  place.  On  January  24,  1800,  the  British 
Admiral,  Sir  Sidney  Smith,  signed  an  agreement  with  Gen- 
eral Ivleber,  the  commander  of  the  French  army  in  Egypt, 
whereby  the  forces  of  France  were  to  evacuate  the  country 
and  be  transported  to  their  own  ports  with  arms,  baggage 
and  other  property.  But  in  the  previous  December  orders 
had  been  sent  to  Lord  Keith,  the  commander-in-chief  in  the 
Mediterranean  and  the  superior  officer  of  Sir  Sidney  Smith, 
instructing  him  not  to  consent  to  any  terms  which  did  not 
involve  the  surrender  of  the  French  troops  as  prisoners  of 
war.  The  orders  based  on  these  instructions  did  not  reach 
Sir  Sidney  Smith  till  February  22,  1800,  a month  after  he 
had  signed  a capitulation  with  Kleber  in  contravention  of 
them.  He  immediately  informed  the  French  commander  of 
the  delicate  situation  in  which  he  was  placed,  and  stated  his 
intention  of  endeavoring  to  induce  the  home  government  to 
ratify  the  capitulation.  Kleber  had  already  restored  certain 
places  to  the  Turks  in  accordance  with  its  provisions,  and 
when  summoned  to  surrender  by  Lord  Keith,  he  broke  off 
negotiations  and  considered  the  agreement  at  an  end.  On 
resuming  hostilities  he  gained  a great  victory  over  the  Turks 
at  Heliopolis  on  March  20,  1800.  Before  the  news  of  this 
altered  condition  of  affairs  reached  England,  the  British 
Government  had  agreed  to  ratify  Sir  Sidney  Smith’s  capitu- 
lation. But  Menou,  who  succeeded  to  the  command  of  the 
French  after  the  assassination  of  Kleber  in  June,  declined 
to  accept  it,  and  hostilities  went  on  for  more  than  a year 
longer,  when  they  were  terminated  by  the  surrender  of  the 
remains  of  the  French  army  on  terms  substantially  the  same 
as  those  agreed  upon  at  El  Arish.  Thus  through  a strange 
combination  of  untoward  circumstances  first  one  side  and 
then  the  other  refused  to  be  bound  by  an  agreement  which 
both  had  signed,  and  that  without  any  just  suspicion  of  bad 
faith  attaching  to  either.1 

1 Fyffe,  Modern  Europe , I.,  224-227  ; Dyer,  Modern  Europe , IV.,  353-354. 


NON-HOSTILE  INTERCOURSE  OF  BELLIGERENTS.  455 


§ 237. 

Lastly  we  must  give  a brief  outline  of  the  law  of 
Truces  and  Armistices. 

They  are  temporary  suspensions  of  hostilities  over  the  whole 
or  a portion  of  the  field  of  warfare.  There  is  some  difference 
of  opinion  and  usage  as  to  the  terms  to  be  ap-  TruCes  and  Armis- 
plied  to  them.  An  agreement  to  cease  from  tlces' 
active  operations  within  a limited  area,  for  a short  time,  and 
with  the  object  of  carrying  out  a definite  purpose  such  as  the 
burial  of  the  dead,  is  generally  called  a Suspension  of  Arms , 
but  it  is  also,  and  with  equal  propriety,  termed  an  Armistice , 
the  latter  being  the  English  usage.1  A similar  agreement, 
extending  over  a very  long  period  and  applying  to  the  whole 
field  of  warfare,  goes  invariably  by  the  name  of  a Truce. 
It  amounts  in  fact  to  a peace,  except  that  no  treaty  is  drawn 
up.  Such  lengthy  cessations  of  hostilities  are  unknown  in 
modern  warfare,  but  operations  are  often  suspended  for  a 
time  in  order  that  negotiations  may  take  place  between  the 
belligerents,  either  for  a definite  peace  or  for  the  surrender 
of  some  place  or  force,  and  these  rifts  in  the  clouds  of  war 
are  called  indifferently  Truces  or  Armistices.  The  chief,  if 
not  the  only  distinction  between  them,  appears  to  be  that 
the  former  is  an  older  word  than  the  latter,  which  has  come 
into  general  use  within  the  last  hundred  and  fifty  years. 
Every  commander  has  power  to  conclude  an  armistice  with 
respect  to  the  forces  and  places  under  his  immediate  control, 
but  a general  armistice  covering  the  whole  field  of  hostilities 
can  be  made  only  by  the  supreme  power  in  the  state. 

The  agreement  for  an  armistice  should  contain  a clear 
announcement  of  the  exact  time  when  it  begins  and  ends. 
As  a rule  the  terms  of  these  instruments  are  precise,  but  in 

1 Speeches  of  Generals  Voigts-Rhetz,  de  Schonfeld  and  Horsford  at  the 
Brussels  Conference  of  1874  ; see  British  State  Papers,  Miscellaneous,  No.  1 
(.2875),  p.  209. 


456  NON-HOSTILE  INTERCOURSE  OF  BELLIGERENTS. 

default  of  definite  stipulations  on  various  points  we  may 
extract  a certain  amount  of  guidance  from  the  general  rules 
of  International  Law.  They  lay  down  that  as  soon  as  an 
armistice  is  concluded  it  should  be  notified  to  all  concerned, 
and  add  that  if  no  definite  time  has  been  fixed  for  the  sus- 
pension of  hostilities,  they  cease  immediately  after  the  noti- 
fication. If  the  duration  of  the  armistice  has  not  been  agreed 
upon,  either  belligerent  may  resume  operations  at  any 
moment,  provided  that  he  gives  clear  and  sufficient  notice 
to  his  foe.  Moreover,  when  one  side  violates  the  armistice, 
the  other  has  the  right  of  terminating  it;  but  in  such  a case 
notice  should  be  given  to  the  offending  party  in  order  to 
afford  him  an  opportunity  for  explanation  and  reparation. 
If,  however,  the  breach  of  the  conditions  agreed  upon  is  the 
act  of  unauthorized  individuals,  the  side  which  suffers  has 
no  right  to  bring  the  arrangement  to  an  end,  but  it  may 
demand  the  punishment  of  the  guilty  parties  and' an  indem- 
nity for  any  losses  it  has  sustained.1 

It  is  universally  agreed  that  during  an  armistice  a bellig- 
erent may  do  in  the  actual  theatre  of  war  only  such  things 
as  the  enemy  could  not  have  prevented  him  from  doing  at 
the  moment  when  active  hostilities  ceased.  Thus  a besieged 
garrison  may  not  repair  a breach  commanded  by  the  enemy’s 
artillery,  but  they  may  build  an  inner  defence  out  of  the 
range  of  his  guns.  Beyond  the  zone  of  active  operations  the 
parties  may  perform  what  acts  of  naval  and  military  prepa- 
ration they  please.  They  can  fit  out  ships,  move  troops, 
recruit  armies,  and,  in  short,  act  as  if  hostilities  were  still 
going  on.  There  is,  however,  a dispute  about  the  re- 
victualling of  a besieged  place.  The  fairest  plan  would  be 
to  allow  it  to  be  supplied  for  a few  days  at  a time  under  the 
supervision  of  the  besiegers.  But  as  a rule  they  are  the 
stronger  party  and  dictate  their  own  terms,  as  the  Germans 
did  in  1871,  when  they  would  not  allow  Paris  to  receive  any 
supplies  during  the  armistice  which  preceded  its  surrender. 


1 Projected  Brussels  Code,  Arts.  47-52. 


4 


CHAPTER  VIII. 


PEACE  AND  THE  MEANS  OF  PRESERVING  PEACE. 


§ 238. 

War  between  civilized  states  is  almost  invariably  ended 
by  a treaty  of  peace.  It  lias  sometimes  happened  that  the 
belligerents  have  exhausted  themselves  and 

. ? . ci  ■ it  War  *s  generally 

tacitly  ceased  from  further  operations,  but  there  terminated  by  a 

J . . treaty  of  peace. 

are  no  recent  instances  of  such  a termination 
to  hostilities.  They  may  come  to  an  end  through  the  de  - 
struction of  one  of  the  communities  engaged  in  them,  as 
Poland  was  destroyed  by  the  Third  Partition,  or  as  the 
Southern  Confederacy  fell  after  four  years  of  strenuous  war- 
fare. In  such  cases  no  treaty  is  possible  because  there  is  no 
body  politic  left  for  the  victor  to  treat  with.  But  when 
each  of  the  belligerents  preserves  its  political  identity  after 
the  war,  a treaty  is  drawn  up  embodying  the  conditions  of 
peace.  As  a rule  it  settles  all  the  matters  in  dispute  be- 
tween the  belligerents.  But  sometimes  the  difficulties  of  a 
settlement  prove  insuperable,  and  the  parties  content  them- 
selves with  providing  for  the  restoration  of  peace  and  amity. 
This  was  the  case  with  Great  Britain  and  the  United  States 
in  1814,  when  the  Treaty  of  Ghent  terminated  the  war 
between  them  without  solving  any  of  the  difficult  questions 
which  had  originally  caused  it.  Such  a curious  combination 
of  a strong  desire  to  terminate  the  struggle  with  an  equally 
strong  inability  to  agree  upon  a settlement  of  the  points  at 
issue  is  very  rare.  Generally  the  causes  of  the  quarrel  are 
dealt  with  in  the  instrument  which  restores  peace,  and  it 

457 


458  PEACE  AND  THE  MEANS  OF  PRESERVING  PEACE. 

contains  in  addition  various  stipulations  concerning  the  new 
order  of  things  which  is  to  follow  the  termination  of  hos- 
tilities. Private  rights  are  safeguarded,  provision  is  made 
for  the  resumption  of  commercial  intercourse,  and  legal  mat- 
ters of  an  international  character  receive  due  attention. 


§ 289. 

The  restoration  of  a state  of  peace  carries  with  it  certain 
consequences  defined  by  International  Law,  and  not  depend- 
The legal conse-  ent  f°r  their  existence  upon  treaty  stipula- 
relft oration  of*  tious,  though  they  may  be  modified  or  set 
piace'  aside  thereby.  The  moment  a treaty  of  peace 

is  signed,  belligerent  rights  cease.  There  must  be  no  more 
fighting.  Requisitions  and  contributions  can  be  no  longer 
levied  by  an  occupying  army,  and  arrears  of  them  remaining 
unpaid  cannot  be  demanded.  The  right  to  detain  prisoners 
of  war  as  such  ceases,  though  convenience  dictates  that  they 
shall  remain  under  supervision  till  proper  arrangements  can 
be  made  for  their  return  home.  When  the  area  of  warfare 
is  very  large,  and  portions  of  it  are  too  remote  to  be  reached 
by  quick  modes  of  communication,  it  is  usual  to  fix  in  the 
treaty  a future  date  for  the  cessation  of  hostilities  in  those 
distant  parts.  But  if  official  news  of  the  restoration  of 
peace  reaches  them  before  the  time  fixed,  it  seems  to  be 
settled  that  no  further  acts  of  war  may  be  committed.  The 
notification  must,  however,  come  from  the  government  of  a 
belligerent  in  order  to  be  binding  upon  its  commanders. 
They  are  under  no  obligation  to  take  notice  of  information 
derived  from  any  other  source.  This  was  clearly  laid  down 
by  the  French  Council  of  Prizes  in  the  case  of  the  Swine- 
herd, a British  ship  captured  in  the  Indian  Ocean  in  1801, 
within  the  five  months  fixed  by  the  Treaty  of  Amiens  for 
the  termination  of  hostilities  in  those  regions,  but  after  the 
French  privateer  which  made  the  capture  had  received  news 
of  the  peace.  The  information  was,  however,  English  and 


PEACE  AND  THE  MEANS  OF  PRESERVING  PEACE.  459 


Portuguese  in  its  sources.  No  notification  of  an  official 
character  had  been  received  from  France,  and  the  capture 
was  therefore  adjudged  to  be  legal.1  Captures  made  in 
ignorance  after  the  conclusion  of  peace,  or  after  the  time 
fixed  in  the  treaty  for  the  termination  of  hostilities,  must 
he  restored,  and  the  effects  of  all  acts  of  war  performed  under 
similar  circumstances  must  be  undone  as  far  as  possible. 

At  the  conclusion  of  peace  private  rights  suspended  dur- 
ing the  war  are  revived.  Thus  debts  due  from  subjects  of 
one  of  the  powers  lately  belligerent  to  subjects  of  the  other 
can  again  be  sued  for,  and  contracts  made  before  the  war 
between  private  individuals  on  opposite  sides  in  the  struggle 
can  be  enforced  at  law.  But  specific  performance  cannot  be 
demanded  if  any  act  done  in  furtherance  of  warlike  opera- 
tions, or  as  an  incident  of  them,  has  rendered  it  impossible.  A 
man,  for  instance,  cannot  be  compelled  to  fulfil  an  agreement 
to  sell  a particular  house  or  a particular  herd  of  cattle,  if  the 
house  has  been  battered  to  pieces  in  a siege  or  the  cattle 
requisitioned  and  eaten  by  the  enemy.  When  a period  is 
put  to  legal  obligations,  the  time  does  not  run  during  the 
continuance  of  hostilities.  Let  us  take  as  an  example  the 
payment  of  a debt,  the  recovery  of  which  is  barred  after 
seven  years  by  a statute  of  limitations.  It  could  be  enforced 
at  the  end  of  a war,  provided  that  less  than  seven  years  had 
elapsed  between  the  time  when  it  was  contracted  and  the 
outbreak  of  hostilities,  and  it  could  also  be  enforced  at  any 
subsequent  period,  provided  that  the  time  between  the  signa- 
ture of  the  peace  and  the  commencement  of  the  action  added 
to  the  time  between  the  incurring  of  the  debt  and  the  war  did 
not  exceed  seven  years. 

As  between  the  belligerent  powers  themselves,  it  is  held 
that  the  conclusion  of  peace  legalizes  the  state  of  possession 
existing  at  the  moment,  unless  special  stipulations  to  the 
contrary  are  contained  in  the  treaty.  This  is  called  the 

1 Kent,  Commentaries  on  American  Law , I.,  § 172,  note  b ; Pitt  Cobbett, 
Leading  Cases  in  International  Law,  p.  150.  ’ 


460  PEACE  AND  THE  MEANS  OP  PRESERVING  PEACE. 

principle  of  uti  possidetis , and  it  is  of  very  wide  and  far 
reaching  application.1  Cities,  districts  and  provinces  held 
in  belligerent  occupation  by  an  enemy  fall  to  him  by  the 
title  of  completed  conquest,  when  it  is  not  expressly  stated 
that  they  are  to  be  evacuated.  Captures  made  at  sea  but 
not  yet  condemned  by  a Prize  Court  become  the  lawful  pos- 
sessions of  the  captor,  and  seizures  on  land  of  such  things 
as  a belligerent  is  allowed  by  the  laws  of  war  to  appropriate 
are  his  by  good  title.  It  is  very  rarely  desired  that  all  these 
consequences  should  follow  the  conclusion  of  peace.  The 
victor  does  not  wish  to  acquire  in  perpetuity  every  post  he 
holds  when  hostilities  cease,  nor  does  the  vanquished  intend 
to  give  up  whatever  territory  may  be  at  the  moment  in  the 
hands  of  his  adversary.  Accordingly  when  one  side  has 
overrun  large  districts  and  captured  many  places,  the  treaty 
of  peace  almost  invariably  contains  elaborate  stipulations 
with  regard  to  them.  Their  future  destination  is  settled 
by  express  agreement,  and  detailed  provisions  are  made  for 
the  regulation  of  proprietary  and  personal  rights  and  obliga- 
tions. Arrangements  that  seem  at  first  sight  to  be  pedantic 
in  their  minuteness  are  often  necessary  to  carry  out  the  in- 
tentions of  the  parties  in  the  face  of  the  rule  that,  when  there 
are  no  express  stipulations  to  the  contrary,  the  principle  of 
uti  possedetis  prevails. 


§ 240. 

Among  the  most  extraordinary  phenomena  of  modern 
times  we  ma)’-  reckon  the  simultaneous  growth  of  the  mate- 
The  simultaneous  rial  preparations  for  warfare  and  a sentiment 
ofwarhandaprepa0r  °f  horror  and  reprobation  of  war.  Both  are 
rations  for  war.  apparent  all  over  the  civilized  world.  The  feel- 
ing in  favor  of  peace  is  strongest  in  the  two  great  English- 
speaking  nations ; but  even  they  have  added  considerably  to 
their  fighting  forces,  while  the  other  leading  states  of  the 


1 Wheaton,  International  Law  (Dana’s  ed.),  § 548. 


PEACE  AND  THE  MEANS  OF  PKESEKVING  PEACE.  461 

civilized  world  have  imposed  crushing  burdens  on  their  man- 
hood and  their  wealth,  in  their  anxiety  to  bring  themselves 
to  the  highest  point  of  efficiency  in  defence  and  attack.  The 
United  States  has  been  untouched  by  any  desire  to  imitate 
the  military  armaments  of  the  continent  of  Europe,  but  she 
has  created  within  recent  years  a navy  of  modern  war-ships, 
which  she  is  steadily  enlarging  with  the  consent  of  both  her 
great  political  parties.  Great  Britain  has  done  little  for  the 
improvement  of  her  army  except  increase  its  cost;  but  she 
has  made  and  is  making  enormous  additions  to  her  fleet. 
On  the  other  hand,  a strong  dislike  of  war  is  growing  among 
the  nations  who  are  most  energetic  in  strengthening  their 
fighting  forces.  Throughout  Europe  there  is  a stirring 
among  both  rulers  and  peoples.  Those  who  preach  the  doc- 
trine that  war  is  essential  to  manliness  and  self-sacrifice  are 
not  accorded  the  almost  universal  approbation  which  would 
have  been  granted  them  a few  years  ago.  Thoughtful  men 
and  women  are  not  disposed  to  traverse  the  statement  that 
the  exclusive  pursuit  of  wealth  and  material  comfort  is  de- 
basing and  dangerous.  They  are  willing  to  admit  the  argu- 
ment of  Von  Moltke  that  knowledge  alone  will  not  inspire 
patriots  to  give  their  lives  for  home  and  fatherland.  But 
they  do  most  strongly  controvert  the  terrible  conclusion 
which  the  great  German  strategist  drew  from  his  innocent 
premises.  They  cannot  believe  that  eternal  peace  is  a dream, 
and  not  even  a beautiful  dream.  They  would  account  it 
blasphemy  to  hold  that  war  is  a part  of  the  divine  order  of 
the  world.  They  see  in  England  a nation  in  which  the 
physical  perfection  of  manhood  is  often  attained  by  healthy 
sports  and  outdoor  exercises,  without  compulsory  military 
service.  They  look  across  the  Atlantic  and  find  another 
people  among  whom  intense  patriotism  and  a most  jealous 
regard  for  the  honor  of  the  flag  is  kept  alive  without  the 
existence  of  a standing  army  of  sufficient  size  to  be  a calcu- 
lable factor  in  the  national  life.  All  around  them  are  the 
devotees  of  religion  and  philanthropy,  the  idealists  of  science 


462  PEACE  AND  THE  MEANS  OF  PRESERVING  PEACE. 

and  art,  in  whose  bosoms  love  of  God  and  man,  or  enthusi- 
asm for  truth  and  beauty,  has  kindled  the  most  heroic  self- 
sacrifice.  While  there  are  new  countries  to  be  explored, 
new  tracts  to  he  reclaimed  from  wilderness  and  tamed  for  the 
service  of  man,  there  will  never  be  lacking  an  ample  field 
for  the  utmost  energy  of  the  restless  and  the  adventurous. 
While  there  are  seas  to  be  crossed  and  mountains  to  be 
climbed,  skill  and  daring  will  be  in  constant  demand.  The 
fireman  in  the  burning  building  is  as  brave  as  the  soldier  in 
the  breach.  The  miner  in  his  underground  galleries  has  as 
much  need  of  coolness  and  courage  as  the  engineer  in  the 
trenches.  Domestic  life  gives  a far  better  training  in  self- 
control  and  self-denial  than  the  camp  or  the  battle-field. 
Obedience  and  discipline  are  qualities  necessary  for  the 
successful  pursuit  of  countless  manufacturing  industries. 
Loyalty  to  comrades  is  developed  by  engaging  with  others 
in  the  work  of  many  a civic  and  religious  organization. 
The  destruction  and  waste  caused  by  war,  the  passions  it 
stirs  up,  and  the  suffering  and  vice  which  follow  in  its  train, 
are  a terrible  price  to  pay  for  noble  qualities  that  may  be 
gained  by  other  means.  Men  can  be  manly  without  periodi- 
cal resort  to  the  occupation  of  mutual  slaughter.  It  is  not 
necessary  to  graduate  in  the  school  of  arms  in  order  to  learn 
the  hard  lessons  of  duty  and  honor  and  self-sacrifice. 

In  the  past  war  has  often  been  a game  which  kings  have 
played  at  in  the  interests  of  personal  or  dynastic  ambitions. 
With  the  advance  of  democracy  it  is  becoming  more  and  more 
a matter  for  peoples  to  decide  upon.  They  are  hardly  likely 
to  engage  in  it  deliberately  after  cool  calculation  as  a mere 
move  in  a deep  political  scheme,  but  they  may  be  easily  led 
into  it  through  ignorance,  or  driven  into  it  through  resent- 
ment and  fury.  The  best  hope  for  the  future  lies  in  their 
enlightenment  as  to  their  true  interests,  and  their  moral 
improvement  to  the  point  of  regarding  every  unnecessary 
conflict  as  at  once  a blunder  and  a crime.  If  wars  there 
must  be,  let  them  at  least  be  wars  of  reason,  and  not  wars  of 
passion. 


PEACE  AND  THE  MEANS  OF  PRESERVING  PEACE.  463 


It  is  not  to  be  wondered  at  that  those  who  can  read  the 
signs  of  the  times  should  stand  aghast  at  the  spectacle 
now  presented  by  the  continent  of  Europe.  The  powers  of 
the  Triple  Alliance  — Germany,  Austria,  and  Italy  — have 
1,136,000  soldiers  with  the  colors,  and  in  the  last  extremity 
can  place  in  the  field  about  10,000,000  men.  France  and 
Russia,  who  are  allied  to  keep  them  in  check,  command 
together  a force  of  1,387,000  trained  troops  on  a peace  foot- 
ing, and  when  their  last  reserves  are  called  out  would  have 
about  7,000,000  men  under  arms.1  These  are  paper  esti- 
mates, but,  after  making  all  possible  deductions  from  them, 
it  seems  clear  that  five  states  only  could  hurl  at  each  other 
vast  masses  of  soldiery  numbering  in  the  aggregate  twelve 
million  souls.  These  figures  take  no  account  of  the  armies 
of  the  smaller  states  or  the  navies  of  the  maritime  powers. 
If  we  make  a reasonable  addition  for  them,  we  arrive  at  the 
startling  conclusion  that  in  a time  of  universal  peace  Europe 
takes  three  million  men  from  productive  occupations,  quar- 
ters them  upon  the  industry  of  those  who  remain,  and  trains 
them  in  all  the  arts  of  destruction,  while  in  a general  war 
the  enormous  number  of  sixteen  million  soldiers  in  a more 
or  less  organized  condition  would  be  available  to  fill  the 
ranks  of  the  armies.  Civilization  cannot  long  endure  such 
a burden,  and  indeed,  the  European  military  system  already 
shows  signs  of  breaking  down  under  its  own  weight.  Greece 
is  bankrupt;  Italy,  Spain  and  Portugal  are  tottering  on  the 
verge  of  bankruptcy;  Germany  has  the  greatest  difficulty  in 
finding  the  means  to  pay  for  her  recently  increased  arma- 
ments; Austria,  Russia  and  France  struggle  on  with  in- 
creased estimates  and  increasing  debts.  Nor  is  this  all. 
An  army  may  be  an  excellent  school  of  honor  and  discipline, 
but  it  may  be  also  a school  of  vice,  too  often  state-established 
and  state-endowed.  It  defers,  if  it  does  not  prevent  entirely, 
healthy  family  relations.  It  tends  to  produce  a distaste  for 
the  comparatively  unexciting  avocations  of  civil  life;  and 

1 See  figures  in  Statesman's  Year  Book  for  1894. 


464  PEACE  AND  THE  MEANS  OF  PRESERVING  PEACE. 

while  it  generally  improves  physique,  it  too  often  causes  a 
deterioration  of  those  mental  and  moral  qualities  which 
make  an  increase  of  bodily  vigor  a blessing  and  not  a curse. 
The  good  effects  of  the  existing  system  can  be  obtained  by 
other  means,  but  the  evils  it  intensifies  would  be  greatly 
diminished  by  its  destruction  or  abatement.  Men  of  light 
and  leading  are  crying  out  everywhere  against  it.  Not  only 
are  the  “peace  societies”  more  active  and  influential  than 
they  have  ever  been  before,  but  statesmen  and  thinkers  who 
do  not  believe  in  the  possibility  of  the  abolition  of  war  are 
endeavoring  to  bring  to  an  end  the  present  state  of  armed 
peace,  which  is  only  one  degree  less  burdensome  than  war 
itself.  We  hear  every  day  rumors  of  proposals  for  a general 
disarmament  made  by  crowned  heads.  The  Pope  is  begged 
to  exercise  his  vast  influence  in  this  direction.  Men  speak 
of  a truce  for  ten  years,  believing  that  if  the  nations  had 
that  period  of  freedom  from  war  burdens  they  would  never 
consent  to  bear  them  again.  An  aged  French  statesman  has 
just  come  forward  to  suggest  that  the  period  of  military 
service  be  reduced  by  general  agreement  to  one  year  only.1 
The  air  is  thick  with  proposals,  some  visionary,  some  in- 
tensely practical.  Advanced  politicians  base  large  hopes  of 
future  peace  upon  the  growing  solidarity  of  labor  all  over 
the  world.  Sanguine  philanthropists  can  see  but  little  diffi- 
culty in  their  own  particular  schemes  for  establishing  a 
Supreme  Court  of  International  Appeal.  Ardent  missiona- 
ries of  brotherhood  and  good-will  are  endeavoring  to  league 
together  in  the  bonds  of  peaceful  fellowship  the  student 
youth  of  civilized  mankind.  Great  divines  and  preachers 
are  awaking  the  Church  to  her  duty  of  warring  against 
war. 

§ 241. 

It  is  not  desirable  to  discuss  at  length  the  various  propo- 
sals alluded  to  in  the  preceding  section.  To  deal  with  them 

1 M.  Jules  Simon,  article  in  Contemporary  Eeview  for  May,  1894. 


PEACE  AND  THE  MEANS  OF  PRESERVING  PEACE.  465 


fully  would  require  a volume,  and  would  be  foreign  to  the 
purpose  of  a book  which  purports  to  set  forth  the  rules  of 
International  Law  as  they  are.  Yet  the  writer 

1 . . Remedies  for  war. 

of  such  a work  may  be  pardoned  if  he  steps  Arbitration  the 

J , most  hopeful. 

aside  for  a few  moments  from  the  beaten  track, 
and  endeavors  to  point  out  to  his  readers  what  seems  to 
him  the  best  and  most  feasible  way  of  helping  to  dimin- 
ish the  horrors  of  war.  Certain  it  is  that  if  he  errs  in  so 
doing,  he  errs  in  good  company.  The  great  founders  of  our 
modern  system  of  international  relations  were  as  much  mor- 
alists as  jurists.  Indeed,  the  two  capacities  were  to  their 
minds  inseparable ; and  though  it  may  be  true  that  their 
works  lacked  precision  in  consequence,  it  is  also  true  that 
the  high  ideal  set  up  by  them  had  no  small  influence  in 
humanizing  the  laws  of  war  and  introducing  justice  into  the 
ordinary  intercourse  of  states. 

We  have  seen  that  the  ferocity  of  ancient  and  mediseval 
warfare  has  been  gradually  mitigated  and  that  further 
mitigations  may  be  hoped  for  in  the  immediate  future. 
Obviously  it  is  the  duty  of  all  who  desire  an  advance  in  the 
directions  indicated  to  use  their  influence  as  citizens  in  favor 
of  the  projected  reforms.  But  side  by  side  with  the  process 
of  measuring  the  severities  permissible  in  war  by  the  neces- 
sities of  the  case,  and  not  by  the  passions  or  greed  of  the 
combatants,  has  gone  on  another  process  which  reduces  the 
area  within  which  hostilities  are  allowed.  This  is  done  by 
what  is  called  Neutralization.  To  neutralize  is  “to  bestow 
by  convention  a neutral  character  upon  states,  persons  and 
things  which  would  or  might  otherwise  bear  a belligerent 
character.”1  It  is  a comparatively  modern  device,  no  clear 
instances  of  it  being  found  before  the  present  century.  In 
1815,  Switzerland  was  neutralized  by  the  Great  Powers,  who 
guaranteed  its  integrity  and  inviolability  within  the  limits 
established  by  the  Congress  of  Vienna.  Belgium  was 
placed  in  the  same  position  by  the  treaties  of  1831  and  1839, 

1 Professor  Holland,  article  in  the  Fortnightly  Beview  for  July,  1883. 


46G  PEACE  AND  THE  MEANS  OF  PRESERVING  PEACE. 

and  Luxemburg  in  1867.  These  states  are  bound  to  make 
no  war  except  for  the  purpose  of  defending  their  own  ter- 
ritory from  actual  attack,  and  the  Great  Powers  are  bound 
neither  to  attack  them  nor  to  allow  any  other  power  to  do 
so.  Their  territory  is  thus  fenced  off  from  the  field  of  possi- 
ble hostilities,  which  is  lessened  in  area  by  its  extent.  They 
afford  the  best  examples  of  neutralization,  but  not  the  only 
ones.  Other  instances  will  be  dealt  with  when  we  come  to 
speak  of  the  Law  of  Neutrality.1  Here  it  is  sufficient  to  say 
that,  when  a territory  is  neutralized  in  reality  as  well  as  in 
name,  an  advance  has  been  made  towards  the  distant  goal  of 
perpetual  peace.  But  great  caution  must  be  used  in  all 
attempts  to  extend  the  operation  to  fresh  tracts  of  land  or 
sea.  It  depends  for  its  successful  application  upon  the 
existence  of  a state  of  mind  among  the  rulers  and  peoples 
concerned,  which  shall  make  them  willing  not  only  to  respect 
the  guarantee  of  neutrality  themselves,  but  also  to  enforce 
it  against  others.  Unless  it  is  well  understood  that  the 
neutralized  state  will  be  aided  to  maintain  its  neutrality  by 
powerful  friends,  ambition  and  self-interest  will  sooner  or 
later  impel  some  neighbors  to  seize  upon  its  territory.  It  is 
wise  to  press  for  neutralization  when  the  political  conditions 
are  favorable ; but  indiscriminate  attempts  to  neutralize  can 
only  bring  discredit  upon  what  is,  when  rightly  employed, 
a valuable  means  of  diminishing  the  evils  of  war  by  dimin- 
ishing the  area  within  which  they  can  be  inflicted. 

We  cannot,  however,  expect  any  very  rapid  spread  of  the 
process  of  neutralization.  It  is  inapplicable  to  great  and 
important  powers,  which  are  conscious  of  having  a promi- 
nent part  to  play  in  the  world,  and  would  not  consent  to  any 
restriction  upon  their  freedom  of  action  in  playing  it.  But 
there  is  another  means  of  abating  war,  which  is  much  less 
limited  in  its  scope.  It  applies  as  well  to  the  strongest  as 
to  the  weakest  states,  and  has  within  itself  the  capacity  of 
being  developed  into  a far  more  efficient  instrument  of  in- 

1 See  §§  245-247 


PEACE  AND  THE  MEANS  OF  PRESERVING  PEACE.  467 


ternational  justice  and  concord  than  it  is  in  its  present 
imperfect  condition.  We  refer,  of  course,  to  Arbitration, 
which  may  be  defined  as  the  submission  of  matters  disputed 
between  states  to  the  judgment  of  one  or  more  impartial 
persons,  whose  decision  the  parties  have  expressly  or  tacitly 
consented  to  accept.  It  is  impossible  to  say  with  precision 
how  many  questions  have  been  settled  in  this  manner.  To 
obtain  absolutely  correct  figures  would  involve  the  labor  of 
a lifetime,  and  an  examination  of  the  archives  of  all  the 
nations  of  the  world.  But  it  is  certain  that  Arbitrations 
have  been  much  more  frequent  during  the  present  century 
than  ever  before,  and  have  increased  in  number  and  impor- 
tance as  the  decades  rolled  on.  At  least  sixty  instances  can 
be  found  since  1815,  and  to  thirty-two  of  these  the  United 
States  was  a party,  while  Great  Britain  comes  next  with 
twenty.1  This  is  a good  record  for  the  English-speaking 
peoples ; and  it  becomes  better  when  Ave  remember  that  the 
greatest  questions  submitted  to  Arbitration  have  been  ques- 
tions between  the  two  states  which  divide  the  political  alle- 
giance of  the  Anglo-Saxon  race.  In  1872  the  Alabama 
claims2  were  adjudicated  upon  by  a board  of  arbitrators  sit- 
ting at  Geneva,  and  in  1893  the  Bering  Sea  question 3 was 
decided  by  a similar  tribunal,  which  assembled  at  Paris. 
These  were  important  matters,  either  of  which  might  have 
led  to  war  had  it  been  injudiciously  handled.  The  first  was 
especially  dangerous.  The  questions  in  dispute  had  been 
discussed  for  years  in  a keen  and  sometimes  not  over-friendly 
controversy,  and  had  evoked  a large  amount  of  popular  pas- 
sion on  both  sides  of  the  Atlantic.  The  second  did  not 
excite  so  much  feeling ; but  more  than  once  the  means  used 
to  enforce  conflicting  claims  came  within  measurable  dis- 
tance of  producing  an  armed  collision  which  might  have 
plunged  the  two  countries  into  war.  Fortunately,  calm 

1 These  figures  are  based  upon  information  published  by  the  Peace  Society 
in  a short  pamphlet  called  The  Proved  Practicability  of  International  Arbi- 
tration. 2 See  §§  261-263.  3 See  § 106. 


468  PEACE  AND  THE  MEANS  OF  PRESERVING  PEACE. 


counsel  took  the  place  of  hot-headed  violence,  the  dispute 
was  referred  to  impartial  judgment,  and  the  United  States 
accepted  an  award  against  its  claims  with  as  much  loyalty 
as  Great  Britain  showed  under  a similar  disappointment 
twenty-one  years  before.  Men  wonder  now  how  it  was 
possible  for  two  kindred  nations  to  work  themselves  up  to 
the  verge  of  a fratricidal  war  over  the  question  whether  one 
of  them  was  liable  in  damages  for  the  escape  from  its  ports 
of  a few  cruisers  to  prey  upon  the  commerce  of  the  other. 
And  already  we  have  begun  to  wonder  why  it  was  that  some 
of  us  seemed  prepared  to  let  a quarrel  over  a seal-fishery 
develop  into  an  armed  struggle,  in  the  course  of  which  it  is 
pretty  certain  that  the  seal-herd  itself  would  have  been 
exterminated.  Both  these  matters  were  eminently  fitted 
for  Arbitration.  They  were  not  concerned  with  national 
existence  or  national  honor.  They  were  what  we  may  call 
business  disputes,  which  could  be  settled  in  either  way  with- 
out affecting  the  position  of  the  losing  party  in  the  family 
of  nations.  But  they  were  by  no  means  trivial.  Many  a 
war  has  taken  place  over  matters  of  far  less  moment.  The 
attention  of  the  civilized  world  was  directed  to  them;  and 
the  example  of  their  peaceful  solution  cannot  fail  to  be  of 
good  effect. 

5 242. 


The  United  States  and  Great  Britain  have  conferred  a 
benefit  upon  humanity  by  referring  to  Arbitration  many  of 
ah  disputes  their  disputes,  and  notably  the  two  important 
uniteds^es  and  ones  t°  which  we  have  just  alluded.  It  remains 
might  b^submit-  for  them  to  do  a greater  service  still  by  agree- 
ted  to  Arbitration.  ing  beforehanq  upon  the  constitution  of  a tribu- 
nal to  deal  with  all  the  difficulties  arising  between  them 
which  may  prove  too  hard  for  diplomacy  to  solve.  Consid- 
ered as  a means  of  settling  international  disputes,  Arbitration 
has  two  great  defects.  On  each  occasion  the  Arbitral  Tri- 
bunal must  be  constituted  ad  hoc  by  agreement  between 


PEACE  AND  THE  MEANS  OF  PRESERVING  PEACE.  469 


parties  already  heated  by  controversy,  and  when  it  has  been 
constituted,  and  has  given  its  decision,  there  is  no  force 
behind  it  to  compel  submission  to  the  award,  should  either 
side  or  both  prove  recalcitrant.  The  latter  flaw  cannot  be 
remedied  till  a further  step  has  been  taken  in  the  develop- 
ment of  international  relations,  and  meanwhile  we  can  only 
trust  to  the  moral  feeling  which  renders  it  difficult  for  a 
self-respecting  state  to  refuse  to  act  upon  a judgment  which 
it  has  pledged  itself  beforehand  to  accept.  But  the  former 
can  be  effectually  removed  without  organic  changes  for  which 
states  are  not  yet  prepared.  Nothing  more  is  needed  than  a 
treaty  containing  two  clauses,  the  first  of  which  shall  stip- 
ulate for  a reference  to  Arbitration  of  every  dispute  that 
cannot  be  settled  by  negotiation,  and  the  second  shall  pro- 
vide that  in  every  case  of  Arbitration  the  tribunal  shall  be 
constituted  of  so  many  members  nominated  in  fixed  propor- 
tions by  the  contracting  parties  and  other  states  mentioned 
by  name.  Public  opinion  in  England  and  America  is  ripe 
for  such  a treaty.  The  old  irritation  has  been  largely  soothed 
by  former  Arbitrations.  Events  have  drawn  and  are  draw- 
ing the  two  countries  closer  and  closer  together,  and  the 
more  they  know  of  each  other  the  clearer  is  their  perception 
of  the  fact  that  race  and  religion  and  political  institutions 
form  between  them  a bond  such  as  exists  between  no  other 
nations  on  the  face  of  the  earth.  Their  essential  interests 
are  not  divergent.  Such  unsettled  questions  as  arise  to  vex 
their  mutual  good-will  are  capable  of  adjustment  without 
serious  friction.  The  exact  distance  to  which  a Maine  fishing 
schooner  may  penetrate  in  a Nova  Scotian  Bay  is  a matter 
of  some  importance  to  powerful  trading  interests ; but  it  is 
hardly  of  sufficient  moment  to  threaten  the  very  life  of  the 
United  States  or  the  British  Empire.  Nor  is  the  honor  of 
the  flag  affected  by  differences  as  to  the  precise  height  to 
which  it  is  desirable  to  build  up  or  lower  the  tariff  wall 
between  the  Northern  States  and  Canada.  War  will  proba- 
bly remain  for  generations  to  come  the  only  method  of  solv- 


470  PEACE  AND  THE  MEANS  OF  PRESERVING  PEACE. 

ing  disputes  which  in  the  opinion  of  those  concerned  involve 
the  national  existence  or  the  national  honor.  We  may  hope 
to  minimize  the  number  of  such  questions,  and  to  secure 
that  they  shall  be  judged  more  dispassionately  than  hereto- 
fore. But  in  the  case  of  Great  Britain  and  the  United 
States  we  start  with  the  initial  advantage  that  they  are  not 
likely  to  arise  at  all.  Circumstances  point  to  these  two 
powers  as  the  best  fitted  of  any  to  lead  the  way  in  a great 
international  experiment,  which,  if  it  is  successful,  will  do 
more  for  the  cause  of  peace  than  any  single  event  since  the 
beginning  of  the  Christian  dispensation.  Already  Congress 
and  Parliament  have  done  their  part.  In  1890  the  Senate 
and  the  House  of  Representatives  adopted  a concurrent  reso- 
lution requesting  the  President  to  make  use  of  any  fit  occa- 
sion to  enter  into  negotiations  with  other  governments  “to 
the  end  that  any  differences  or  disputes  . . . which  cannot 
be  adjusted  by  diplomatic  agency  may  be  referred  to  Arbitra- 
tion and  peaceably  adjusted  by  such  means.”  The  good 
work  thus  begun  was  taken  up  by  the  British  House  of 
Commons.  On  June  16,  1893,  it  passed  by  a unanimous 
vote  a resolution  expressing  the  satisfaction  with  which  its 
members  had  learned  of  the  action  of  Congress,  and  “the 
hope  that  Her  Majesty’s  Government  will  lend  their  ready 
co-operation  to  the  Government  of  the  United  States  ” in 
any  attempt  to  carry  out  as  between  the  two  countries  the 
purpose  of  the  American  suggestion.  President  Cleveland 
has  officially  conveyed  to  Congress  the  resolution  of  the 
House  of  Commons  with  an  expression  of  his  “sincere  grati- 
fication that  the  sentiment  of  two  great  and  kindred  nations 
is  thus  authoritatively  manifested  in  favor  of  the  rational 
and  peaceful  settlement  of  international  quarrels  by  honora- 
ble resort  to  arbitration.”  Thus  the  matter  stands  at  pres- 
ent.1 It  only  remains  for  the  diplomatists  to  draw  up  the 
treaty  and  the  peoples  to  insist  that  it  shall  be  duly  nego- 
tiated, signed,  ratified  and  acted  upon.2 

1 See  Concord  for  January,  1894,  pp.  8,  9. 

2 Since  the  text  was  written  the  governments  of  the  two  countries  have 
negotiated  an  elaborate  treaty,  providing  for  the  classification  of  disputes 
and  their  reference  to  Arbitral  Tribunals  variously  constituted  according  to 


PEACE  AND  THE  MEANS  OF  PRESERVING  PEACE.  471 

. The  resources  of  diplomacy  are  by  no  means  unequal  to  the 
task  thus  set  before  it.  As  every  war  is  an  evidence  of  its 
failure,  so  every  Arbitration  is  a sign  of  its  success.  Even 
if  higher  motives  were  altogether  absent,  which  is  certainly 
not  the  case,  professional  feeling  would  make  diplomatists 
zealous  for  the  peaceful  solution  of  international  difficulties. 
For  more  than  ten  years  past  they  have  been  in  the  habit  of 
introducing  into  treaties  of  commerce  stipulations  binding 
the  contracting  parties  to  arbitrate  upon  any  disputes  that 
might  arise  out  of  their  provisions,  and  the  Swiss  Govern- 
ment has  more  than  once  pressed  upon  the  United  States  the 
desirability  of  an  agreement  to  refer  all  disputes,  commer- 
cial or  otherwise,  to  Arbitration,  when  they  cannot  be  settled 
in  the  course  of  ordinary  negotiations.  Such  a treaty  be- 
tween Great  Britain  and  the  United  States  would  have  an 
enormous  effect,  especially  if  it  provided  beforehand  for  the 
constitution  of  the  Arbitral  Tribunal.  Without  the  slight- 
est wish  to  belittle  other  countries,  we  may  say  in  sober  truth 
that  these  two  nations  are  marked  out  for  empire  by  the 
extent  of  their  dominions,  the  freedom  of  their  institutions, 
and  the  energy  and  governing  ability  of  their  people.  The 
assurance  of  continual  peace  between  them  means  that  the 
war-demon  is  exorcised  from  a large  and  rapidly  increasing 
portion  of  the  human  race.  Their  Arbitral  Tribunal  will  in 
time  develop  into  a Permanent  Court,  and  the  Permanent 
Court  will  soon  come  to  possess  a permanent  code.  Other 
nations,  burdened  almost  beyond  endurance  by  military  and 
naval  armaments,  will  follow  in  their  footsteps.  First  they 
will  adopt  the  method  of  Arbitration  in  a steadily  increasing 
number  of  instances.  Then  they  will  regard  their  war 
preparations  as  too  heavy  an  insurance  against  evils  less  and 
less  likely  to  occur,  and  will  refuse  to  bear  the  strain  of 
them  any  longer.  They,  too,  will  then  be  ready  for  their 
Permanent  Court,  and  for  the  general  disarmament  which 
will  release  the  springs  of  industry,  and  abolish  the  hated 
blood-tax.  From  a number  of  Courts  with  jurisdiction  over 

the  class  of  cases  they  were  to  decide.  But  unfortunately,  in  the  spring  of 
1897,  the  Senate  of  the  United  States  refused  to  ratify  the  treaty. 


472  PEACE  AND  THE  MEANS  OF  PRESERVING  PEACE. 

groups  of  states,  one  great  Court  with  jurisdiction  over 
civilized  humanity  may  at  length  spring,  and  when  it  comes 
into  being  means  will  be  found  to  arm  it  with  a force  which 
shall  compel  obedience  to  its  decisions.  The  evolution  of 
perpetual  peace  must  go  on  by  slow  degrees.  We  cannot 
hope  to  see  the  time  when  war  will  be  but  a dim  memory  of 
an  uncouth  past.  Yet  we  can  bring  it  nearer  by  persistent 
effort  to  help  on  the  cause  of  international  brotherhood  in 
our  own  daj^  and  generation.  With  the  opportunity  before 
us  of  binding  together  the  two  great  branches  of  the  English- 
speaking  people  in  a permanent  league  of  amity  and  good- 
will, we  have  only  to  do  our  plain  and  simple  duty  and  we 
shall  not  have  lived  in  vain. 


Part  IY. 


THE  LAW  OF  NEUTRALITY. 

CHAPTER  I. 

THE  NATURE  AND  HISTORY  OF  NEUTRALITY. 

§ 243. 

Neutrality  may  be  defined  as  The  condition  of  those 
states  which  in  time  of  war  take  no  part  in  the  The  definition  of 

7 . • *17  Neutrality.  The 

contest , but  continue  pacific  intercourse  with  the  varied  elements 

± which  have  gone 

belligerents.  to  form  its  law. 

The  Law  of  Neutrality  contains  some  of  the  oldest 
and  some  of  the  youngest  chapters  of  our  science.  We 
have  in  it  rules  that  have  been  observed  for  ages,  and 
rules  that  have  been  developed  in  our  own  time.  Some 
of  its  customs  have  gained  authority  from  long  usage, 
and  some  are  even  now  shifting  and  uncertain.  It  sets 
forth  principles  that  have  been  consecrated  by  general 
assent,  and  principles  that  are  still  warmly  debated  and 
fiercely  decried.  High  ethical  considerations  have  moulded 
some  parts  of  it,  while  others  have  arisen  from  the  conflict 
of  opposing  self-interests.  Starting  from  small  beginnings 
it  has  grown  with  the  growth  of  the  idea  that  peace  and  not 
war  is  the  normal  condition  of  mankind,  till  now  it  forms 
the  most  important,  if  not  the  largest,  title  of  the  interna- 

473 


474  THE  NATURE  AND  HISTORY  OF  NEUTRALITY. 

tional  code.  He  who  reads  its  pages  aright  will  find  therein 
the  proof  that,  by  making  war  difficult  and  neutrality  easy, 
nations  may  be  led  to  take  that  “ true  road  to  a perpetual 
peace  ” 1 which  all  lovers  of  humanity  desire  to  see  them 
tread. 

Neutrality  is  in  a sense  the  continuation  of  a previously 
existing  state.  By  going  to  Avar  belligerents  alter  their 
condition ; but  the  powers  Avho  choose  to  be  neutral  remain 
as  they  Avere  before.  It  might  be  thought,  therefore,  that 
their  international  rights  were  unchanged ; and  so  far  is  this 
the  case  that  the  legal  presumption  is  in  favor  of  identity 
and  continuity.  Unless  proof  to  the  contrary  is  shown, 
neutral  states  and  their  subjects  are  free  to  do  in  time  of 
war  betAveen  other  states  what  they  were  free  to  do  in  time 
of  universal  peace.  But  International  Law  has  affixed  to 
the  state  of  neutrality  certain  rights  and  obligations  which 
do  not  exist  Avhen  there  is  no  war.  Neutral  governments 
may  regulate  the  delivery  of  certain  articles  to  belligerent 
cruisers  enjoying  the  hospitality  of  their  ports.  The  supply 
of  certain  other  articles  they  are  bound  to  prohibit  alto- 
gether. They  have  the  right  to  enforce  respect  for  the  neu- 
trality of  their  Avaters,  and  they  are  under  an  obligation  not 
to  allow  their  territory  to  be  used  for  the  fitting  out  or  re- 
cruitment of  armed  expeditions  in  favor  of  either  belliger- 
ent. Similarly  the  commerce  of  neutral  individuals  with 
the  belligerents  is  subject  to  certain  restrictions  which  do 
not  exist  in  time  of  peace,  and  if  they  are  disregarded  the 
neutral  trader  is  liable  to  severe  penalties  at  the  hand  of  the 
belligerent  Avho  suffers  by  his  operations.  These  are  but 
examples  and  indications  of  the  altered  legal  conditions 
brought  about  by  war  even  in  the  case  of  those  who  take  no 
part  in  it.  The  whole  LaAV  of  Neutrality  is  nothing  more 
than  the  setting  forth  of  the  changes  alluded  to ; but  through- 
out it  there  runs  the  principle  that  every  restriction  upon  the 
activities  that  Avere  laAvful  to  neutrals  in  the  previous  state 
1 Wliewell,  Elements  of  Morality  and  Polity , p.  611. 


THE  NATURE  AND  HISTORY  OF  NEUTRALITY.  475 


of  general  peace  must  rest  upon  clear  and  undoubted  rule. 
The  burden  of  proof  lies  upon  those  who  would  enforce  the 
restraint.  The  presumption  is  in  favor  of  the  continuation 
of  former  liberty.  This  may  be  regarded  as  the  undoubted 
doctrine  of  modern  times,  though  its  acceptance  cannot  be 
dated  much  farther  back  than  the  end  of  the  eighteenth  cen- 
tury. Till  then  belligerents  were  on  the  whole  more  power- 
ful than  neutrals,  and  were  able  to  carry  on  their  wars  with 
slight  regard  to  the  sanctity  of  neutral  territory  or  the  con- 
venience of  neutral  commerce. 

§ 244. 

The  nations  of  classical  antiquity  had  no  names  to  signify 
what  we  mean  by  neutrality.  The  Romans  spoke  of  neu- 
trals as  medii , amici  or  pacati ; and  their  vocab-  The  history  of 
ulary  remained  in  use  all  through  the  Middle  Neutrality' 
Ages.  Grotius  in  the  one  short  chapter  which  he  gives  to 
the  matter  refers  to  medii 1 and  Bynkershoek  is  obliged  to 
coin  the  awkward  phrase  non-hostes  when  he  wishes  to  be 
exact.1 2  In  the  seventeenth  century  the  terms  neutral  and 
neutrality  occur  in  a Latin  and  a German  dress  as  well  as  in 
English,3  but  they  had  to  be  adopted  into  the  French  lan- 
guage before  their  use  became  general.  Yattel,  writing  in 
1758,  spoke  of  neutre  and  neutrality ; 4 and  in  the  following 
year  Hiibner  published  his  De  la  Saisie  des  Bdtements  Neutres. 
From  that  time  the  words  became  technical  terms,  and  were 
used  by  all  writers  and  speakers  upon  the  department  of  In- 
ternational Law,  with  which  we  are  now  concerned. 

It  might  be  inferred  from  the  absence  of  a proper  vocabu- 
lary of  neutrality  in  the  works  of  the  early  publicists  that 

1 De  Jure  Belli  ac  Pads,  III.,  XVII.,  iii. 

2 Qucestiones  Juris  Publici,  I.,  9. 

3 Holland,  Article  on  the  International  Position  of  the  Suez  Canal  in  the 
Fortnightly  Beview  for  July,  1883. 

4 Droit  des  Gens,  III.,  Ch.  vii. 


476  THE  NATURE  AND  HISTORY  OF  NEUTRALITY. 

the  thing  itself  was  either  unknown  to  them  entirely  or 
existed  in  a very  rudimentary  condition.  The  truth  is  that 
the  Law  of  Neutrality  is  a comparatively  modern  growth,  in 
so  far  as  it  deals  with  the  mutual  rights  and  duties  of  bellig- 
erent and  neutral  states.  It  has  arisen  during  the  last  three 
centuries  from  a recognition,  dim  at  first  but  growing 
clearer  and  clearer  as  time  went  on,  of  the  two  principles  of 
absolute  impartiality  on  the  part  of  neutrals  and  absolute 
respect  for  neutral  sovereignty  on  the  part  of  belligerents. 
But  in  so  far  as  it  deals  with  the  right  of  belligerent  states 
to  put  restraint  on  the  commerce  of  neutral  individuals,  it 
is  at  least  as  old  as  the  maritime  codes  of  the  Middle  Ages, 
and  in  some  of  its  provisions  traces  can  be  found  of  the 
sea  laws  of  the  Greeks  and  the  Romans.1  Opposing  self- 
interests  are  the  operative  forces  which  have  determined  the 
character  of  this  part  of  the  Law  of  Neutrality.  At  first  the 
powers  at  war  were  able  to  impose  hard  conditions  upon 
peaceful  merchants.  It  was  a favor  for  them  to  be  allowed 
to  trade  at  all,  and  they  were  not  permitted  to  do  anything 
that  would  impede  the  operations  of  the  belligerents.  Then, 
as  commerce  became  stronger,  concession  after  concession 
was  won  for  neutral  traders ; and  neutral  states  made  common 
cause  to  protect  their  subjects  from  molestations  they  deemed 
unwarrantable.  The  nineteenth  century  has  seen  the  re- 
moval of  many  of  the  remaining  shackles,  and  it  can  hardly 
he  doubted  that  others  will  soon  be  struck  off.  The  nature 
of  the  process  will  be  seen  when  we  come  to  speak  in  detail 
of  the  rules  of  maritime  capture  as  they  affect  neutral  com- 
merce. Meanwhile  we  will  briefly  trace  the  growth  of  a 
Law  of  Neutrality,  as  between  the  states  concerned  in  the 
war  and  the  states  which  hold  aloof  from  it. 

Two  writers  so  utterly  unlike  in  principles  and  modes  of 
thought  as  Machiavelli  and  Grotius  are  at  one  in  assuming 
that  the  condition  of  neutrality  is  difficult  and  dangerous. 
But  here  their  agreement  ends.  The  Florentine  statesman 

O 

1 Pardessus,  Us  et  Coutumes  de  la  Mer,  Vol.  I. 


THE  NATURE  AND  HISTORY  OF  NEUTRALITY.  477 

characteristically  advises  that  the  ideal  Prince  should  never 
be  neutral  in  wars  between  his  neighbors,  since  it  is  always 
more  advantageous  to  take  part  in  the  struggle.  He  argues 
that,  when  there  is  reason  to  fear  whichever  of  the  bellig- 
erents happens  to  become  the  conqueror,  it  is  wise  to  take 
up  arms  on  one  side  or  the  other,  because,  if  you  do  not, 
“you  are  certain  to  become  the  prey  of  the  victor  to  the  sat- 
isfaction and  delight  of  the  vanquished.”  If  on  the  other 
hand  neither  party  to  the  struggle  can  give  you  cause  for 
fear,  “it  is  all  the  more  prudent  for  you  to  take  a side,  for 
you  will  then  be  ruining  the  one  with  the  help  of  the  other, 
who,  were  he  wise,  would  endeavor  to  save  him.  If  he 
whom  you  help  conquers,  he  remains  in  your  power,  and 
with  your  aid  he  cannot  but  conquer.”1  It  is  needless  to 
say  that  the  great  Dutch  jurist  does  not  treat  the  problems 
of  neutrality  in  this  cynical  way.  But  his  endeavor  to  apply 
moral  principles  to  their  solution  shows  by  its  palpable 
imperfections  how  new  was  the  task  he  attempted.  He 
makes  the  neutral  state  into  the  judge  of  the  justice  or 
injustice  of  the  war,  and  bids  it  “do  nothing  which  may 
strengthen  the  side  which  has  the  worse  cause,  or  which  may 
impede  the  motions  of  him  who  is  carrying  on  a just  war.” 
Only  in  “a  doubtful  case  ” is  it  exhorted  “to  act  alike  to  both 
sides.”2  Where  modern  International  Law  insists  on  impar- 
tiality of  conduct  Grotius  makes  inequality  of  treatment  a 
duty.  He  would  determine  a neutral’s  action  by  its  views 
as  to  the  rights  and  wrongs  of  the  quarrel ; whereas  the  ap- 
proved doctrine  of  recent  publicists  is  that  the  opinions  and 
sympathies  of  non-combatant  powers  should  have  no  effect 
on  their  behavior.  They  are  bound  to  hold  the  balance  equal 
between  the  parties  to  the  conflict,  however  strongly  they 
may  desire  the  success  of  one  of  them  and  the  defeat  of  the 
other.  Neutral  duties  towards  belligerents  have  grown 

1 The  Prince , Ch.  XXI.  The  quotations  in  the  text  are  from  the  trans- 
lation by  N.  H.  T. , published  by  Kegan,  Paul  & Co. 

2 De  Jure  Belli  ac  Pads , III.,  XVII.,  iiL 


4TB  THE  NATURE  AND  HISTORY  OF  NEUTRALITY. 

enormously  since  the  time  of  Grotius,  and  their  development 
has  not  taken  place  along  the  exact  lines  laid  down  by  him. 
A similar  growth  is  observable  in  the  corresponding  depart- 
ment of  belligerent  duties  towards  neutrals.  We  must  be 
content  with  a very  brief  survey  of  both  processes. 

Up  to  the  middle  of  the  seventeenth  century  it  was  neces- 
sary to  bind  states  to  neutrality  by  special  treaty  stipula- 
tions, in  the  absence  of  which  a so-called  neutral  allowed 
one  or  the  other  of  the  belligerents  to  levy  troops  and  fit  out 
ships  within  its  dominions,  and  sometimes  furnished  him 
with  stores  and  munitions  of  war  at  the  public  expense.1 
After  that  time  it  began  to  be  admitted  that  neutrality  in- 
volved abstinence  from  open  aid  or  encouragement  to  either 
belligerent.  But  an  exception  was  made  in  the  case  of 
solemn  promises  of  assistance  made  before  the  war.  Grotius 
had  gone  so  far  as  to  declare  that,  even  when  two  states  were 
bound  by  a league,  one  of  them  might  defend  a third  power 
from  the  attack  of  its  ally  without  a general  breach  of  the 
peace  between  them.2  But  the  accepted  doctrine  of  the 
eighteenth  century  was  not  quite  so  broad.  It  laid  down 
in  the  words  of  Vattel  that  “when  a sovereign  furnishes  the 
succor  due  in  virtue  of  a former  defensive  alliance,  he  does 
not  associate  himself  in  the  war.  Therefore  he  may  fulfil 
his  engagements  and  yet  preserve  an  exact  neutrality.”  The 
Swiss  publicist  goes  on  to  say  that  “of  this  Europe  affords 
frequent  instances,”  and  it  is  easy  to  collect  a number  of 
cases  more  than  sufficient  to  make  good  his  assertion.  He 
himself  refers  to  the  action  of  the  Dutch,  who  in  the  war  of 
the  Austrian  Succession  furnished  Maria  Theresa  with  sub- 
sidies and  troops  for  use  against  France,  with  whom  they 
remained  at  peace;  and  as  this  assistance  was  given  under 
the  provisions  of  a treaty  made  before  the  war  and  not  in  con- 
templation of  it,  the  French  Government  did  not  complain 
until  the  forces  of  the  United  Provinces  threatened  its  Alsa- 

1 Hall,  International  Law , § 208. 

2 Be  Jure  Belli  ac  Pads,  II.,  XVI.,  xiii. 


THE  NATURE  AND  HISTORY  OF  NEUTRALITY.  479 


tian  frontier.1  When  such  a definite  and  important  state  act 
as  the  despatch  of  fleets  and  armies  was  not  held  to  be  incon- 
sistent with  neutrality,  we  may  well  imagine  that  the  lesser 
concessions  of  permission  to  levy  recruits  or  purchase  and 
equip  vessels  of  war  were  deemed  perfectly  innocent.  Very 
often  indeed  leave  was  taken  without  the  ceremony  of  ask- 
ing for  it,  as,  for  instance,  by  Frederick  the  Great,  who  in 
the  Seven  Years’  War  cared  not  where  he  obtained  his  sol- 
diers as  long  as  the  ranks  were  full.  But  towards  the  close 
of  the  century  moral  ideas  outran  practice,  and  writers  who 
were  abreast  of  the  best  opinion  of  their  day  began  to  con- 
demn the  license  of  which  we  have  been  speaking.  Thus 
G.  F.  de  Martens  maintained  that  a state  which  sent  troops 
to  assist  one  of  the  belligerents  could  not  in  strictness  de- 
mand to  be  looked  upon  as  a neutral,  though  he  allows  that 
it  would  be  generally  regarded  as  such  when  the  treaty  under 
which  it  gave  the  aid  was  made  before  the  war.2  The  year  in 
which  he  wrote  witnessed  the  last  example  of  the  practice 
he  condemned.  In  1788  Denmark  furnished  limited  succor 
to  Russia,  then  at  war  with  Sweden.  Though  she  was  bound 
by  previously  existing  treaties  to  do  so,  her  conduct  was 
made  the  subject  of  protest  by  the  power  which  suffered  in 
consequence  of  it,  and  had  not  the  war  been  brought  to  a 
speedy  termination,  she  would  probably  have  been  made  a 
party  to  it.3 

When  neutrals  were  allowed  to  ignore  in  act  the  principle 
of  impartiality  they  loudly  asserted  in  words,  it  is  not  to  be 
wondered  at  that  the  obligation  to  respect  the  sovereignty 
and  territorial  integrity  of  neutral  states  sat  lightly  upon 
belligerent  powers.  The  elementary  duty  of  refraining  from 
hostile  operations  in  neutral  territory  was  frequently  vio- 
lated. Grotius  admits  that  many  liberties  were  often  taken 

1 Droit  des  Gens,  III.,  §§  101, 105. 

2 Precis  du  Droit  des  Gens  Moderne,  §§  264,  265. 

3 Wheaton,  International  Law , § 424 ; Phillimore,  International  Law, 
Pt.  IX.,  Ch.  ix. 


480  THE  NATURE  AND  HISTORY  OF  NEUTRALITY. 

with  those  who  refrained  from  engaging  in  a war,  and  advises 
them  to  make  a convention  with  each  of  the  belligerents  so 
that  they  may  be  allowed  with  the  good-will  of  both  to  ab- 
stain from  hostilities.1  Indeed  there  seems  to  have  been  an 
idea  abroad  during  his  time  that  a neutral  state  must  be 
either  weak  or  mean-spirited.  In  the  first  case  its  territory 
might  be  violated  with  safety,  and  in  the  second  it  was 
deemed  to  have  received  a useful  lesson  when  a powerful 
neighbor  made  it  suffer  in  spite  of  its  determination  to  incur 
no  risks.  Certain  it  is  that  violations  of  neutral  territory 
on  the  part  of  belligerents  were  of  constant  occurrence.2  In 
1639,  for  instance,  a Spanish  fleet  was  destroyed  in  the 
Downs,  which  are  English  territorial  waters,  by  the  Dutch 
admiral  Tromp,  after  negotiations  which  did  little  honor  to 
the  good  faith  of  Charles  I.,3  and  in  1665  the  English  re- 
turned the  compliment  by  attempting  to  seize  a Dutch  squad- 
ron in  the  neutral  harbor  of  Bergen.  It  is  generally  alleged, 
and  probably  with  truth,  that  a considerable  improvement 
took  place  in  the  next  century;  but  we  must  not  forget  that 
one  of  the  greatest  of  its  writers  endeavored  to  introduce 
into  the  international  code  an  exception  to  what  had  hitherto 
been  regarded  as  the  undoubted  principle  of  the  sanctity  of 
neutral  territory,  however  little  it  may  have  been  observed 
by  warring  states.  In  1737  Bynkerslioek  maintained  that 
it  was  lawful  for  a belligerent  to  pursue  an  enemy’s  vessel 
into  neutral  waters,  and  complete  the  capture  there  dum 
fervet  opus .4  Fortunately  this  rule  has  never  won  general 
acceptance,  and  it  may  be  considered  as  bad  in  law,  though 
it  has  sometimes  been  quoted  to  justify  high-handed  action 
on  the  part  of  powerful  belligerents. 

In  matters  connected  with  neutrality  state  action  was 
halting  and  uncertain  till  the  close  of  the  eighteenth  cen- 

1 De  Jure  Belli  ac  Pads,  III.,  XVII.,  i.  and  iii. 

2 Hall,  International  Law , § 209. 

8 Gardener,  History  of  England , IX.,  60-68. 

4 Qucestiones  Juris  Publid,  I.,  8. 


THE  NATURE  AND  HISTORY  OF  NEUTRALITY.  481 


tury.  Lip  service  was  rendered  to  the  two  great  principles 
of  impartiality  on  the  part  of  neutral  powers  and  respect  for 
neutral  sovereignty  on  the  part  of  belligerents,  but  both  of 
them  were  frequently  ignored  in  practice.  Even  when  gov- 
ernments acted  towards  one  another  with  perfect  loyalty,  they 
made  no  attempt  to  restrain  the  vagaries  of  their  subjects, 
who  might  with  impunity  give  direct  assistance  to  either 
side  and  use  neutral  territory  as  a base  of  warlike  operations. 
This  unsatisfactory  condition  of  affairs  was  permanently 
improved  owing  to  the  action  of  the  United  States  in  the 
war  which  broke  out  in  1793  between  Great  Britain  and 
Revolutionary  France.  M.  Genet,  the  French  Minister 
accredited  to  the  American  Republic,  caused  French  priva- 
teers to  be  fitted  out  in  American  ports  and  despatched  there- 
from to  prey  upon  British  commerce.  He  also  set  up  Prize 
Courts  in  connection  with  French  Consulates  in  the  United 
States ; and  these  courts  tried  and  condemned  British  vessels 
which  had  been  captured  by  French  cruisers  and  brought 
into  American  waters.  Great  Britain  complained  of  these 
acts  as  injurious  to  her  own  commerce  as  well  as  derogatory 
to  the  sovereignty  of  the  United  States;  and  Washington’s 
administration  took  the  ground  that  by  the  law  of  nations 
all  judicial  functions  within  a country  must  be  exercised  by 
its  own  courts  acting  under  the  authority  of  its  government. 
Jefferson,  therefore,  as  Secretary  of  State,  wrote  to  M.  Genet 
on  June  5,  1793,  that  “it  is  the  right  of  every  nation  to 
prohibit  acts  of  sovereignty  from  being  exercised  by  any 
other  within  its  limits,  and  the  duty  of  a neutral  nation  to 
prohibit  such  as  would  injure  one  of  the  warring  powers.”1 
He  had  previously  admitted  to  Great  Britain  the  obligation 
of  the  United  States  to  prevent  the  commissioning,  equip- 
ping and  manning  of  vessels  in  her  ports  to  cruise  against 
either  belligerent.  Washington  did  his  utmost,  in  spite  of 
a hostile  public  opinion  and  a defective  condition  of  the 
law,  to  enforce  respect  for  the  principles  his  government  had 
1 Wharton,  International  Law  of  the  United  States,  § 398. 


482  THE  NATURE  AND  HISTORY  OF  NEUTRALITY. 

laid  down.  He  ordered  the  collectors  of  customs  throughout 
the  Union  to  prevent  the  original  arming  and  equipping  of 
cruisers  destined  for  belligerent  service  and  the  subsequent 
equipment  of  vessels  solely  adapted  to  warlike  uses.  No 
enlistments  were  to  be  permitted  on  board  a belligerent 
vessel  enjoying  the  hospitality  of  American  ports,  unless  the 
recruits  were  subjects  of  the  power  which  owned  the  ship, 
and  not  inhabitants  of  the  United  States.  M.  Genet  not 
only  paid  no  heed  to  remonstrances,  but  endeavored  to  stir 
up  opposition  to  the  administration.  His  recall  was  there- 
fore demanded;  and  the  first  great  triumph  of  the  American 
Government  in  its  policy  of  strict  and  honest  neutrality  was 
won  when  the  French  Republic  compelled  its  minister  to 
return  in  disgrace,  and  instructed  his  successor  to  disarm 
the  privateers  which  had  been  fitted  out  in  the  United  States 
and  remove  the  consuls  who  had  taken  part  in  the  proceed- 
ings of  the  so-called  Consular  Prize  Courts.  A few  months 
before  it  had  received  a check  in  the  acquittal  of  Gideon 
Henfield,  an  American  citizen  who  had  taken  service  at 
Charleston  on  board  a French  privateer,  and  was  indicted 
at  common  law  for  enlisting  in  violation  of  the  treaties  of 
the  United  States.  But  in  1794  Congress  forbade  American 
citizens  to  enlist  in  the  army  or  navy  of  a foreign  state,  and 
prohibited  other  acts  in  defiance  of  the  neutrality  of  the 
United  States.  It  also  gave  the  President  the  right  to  use 
the  army  and  navy  to  prevent  the  departure  from  American 
jurisdiction  of  vessels  offending  against  the  Act.  This  was 
the  first  of  the  American  statutes  passed  for  the  purpose  of 
arming  the  central  government  with  power  to  perform  its 
obligations  as  a neutral.  Originally  its  operation  was  limited 
in  point  of  time,  but  in  1800  it  was  made  perpetual.  Addi- 
tional acts  and  amending  acts  were  passed  at  frequent  inter- 
vals, till  in  1818  the  whole  law  on  the  subject  of  neutrality 
was  codified  and  embodied  in  the  great  Foreign  Enlistment 
Act  which  is  still  in  force.  By  this  statute  citizens  of  the 
United  States  are  prohibited  from  serving  in  war  against 


THE  NATURE  AND  HISTORY  OF  NEUTRALITY.  483 


any  foreign  state  with  which  the  United  States  are  at  peace ; 
and  a variety  of  acts  are  made  criminal,  among  the  chief  of 
which  are  fitting  out  or  arming  any  vessel  within  American 
jurisdiction  with  the  intent  that  it  shall  be  employed  as  a 
belligerent  cruiser  in  a war  in  which  the  United  States  is 
neutral,  increasing  within  the  United  States  the  warlike 
force  of  any  cruiser  so  employed,  and  setting  on  foot  in  the 
territory  or  territorial  waters  of  the  Union  armed  expedi- 
tions against  any  country  with  which  the  United  States  is 
at  peace.1 

These  proceedings  of  the  United  States  from  1793  to  1818 
mark  an  era  in  the  development  of  the  rights  and  obligations 
of  neutral  powers.  The  grounds  on  which  the  action  of  the 
American  Government  was  based  are  to  be  found  in  the 
works  of  the  great  publicists  of  the  eighteenth  century;  but 
never  before  had  the  principles  laid  down  by  these  writers 
been  so  rigorously  applied  and  so  loyally  acted  upon.  The 
practical  deductions  drawn  from  them  by  Washington  and 
his  Cabinet  were  seen  to  be  just  and  logical,  and  the  govern- 
ments of  other  states  followed  in  their  turn  the  American 
example.  It  was  recognized  that  not  only  must  a neutral 
state  refrain  from  giving  official  aid  to  the  belligerents  in 
matters  relating  to  the  war,  but  it  must  also  restrain  its 
subjects  from  such  acts  as  have  a direct  and  immediate  effect 
in  augmenting  the  warlike  force  of  any  of  the  parties  to  the 
contest.  Proper  care  for  its  own  sovereign  rights  compels 
it  to  insist  upon  respect  for  the  neutrality  of  its  territory, 
just  as  a sense  of  justice  towards  the  belligerent  who  would 
suffer  from  illegal  enterprises  causes  it  to  put  them  down 
with  a strong  hand.  In  1819  Great  Britain  adopted  a neu- 
trality statute  based  avowedly  upon  the  act  passed  by  Con- 
gress in  the  previous  year;  and  in  1870,  after  her  experience 

1 For  an  account  of  the  efforts  of  Washington’s  government  to  preserve 
an  honest  neutrality,  see  Wheaton,  International  Law  (Dana’s  ed.),  note 
215,  and  Wharton,  International  Law  of  the  United  States , §§  395,  396, 
398-402, 


484  THE  NATURE  AND  HISTORY  OF  NEUTRALITY. 


of  the  weakness  of  her  law  in  dealing  with  the  Alabama  and 
other  Confederate  cruisers,  she  strengthened  it  by  a new 
and  more  stringent  Foreign  Enlistment  Act,  which  in  several 
particulars  goes  beyond  the  American  law  in  severity.  The 
neutrality  regulations  of  other  civilized  states  are  drawn  upon 
similar  lines,  though  they  differ  considerably  from  one  an- 
other in  their  prohibitions  and  permissions.  There  is  some 
danger  lest  the  obligations  placed  upon  neutral  governments 
should  become  too  burdensome.  In  the  interests  of  human- 
ity peace  should  be  made  easy  and  war  difficult.  But  if  the 
duties  of  neutrality  are  to  be  extended  to  comparatively 
trivial  matters,  the  performance  of  them  will  be  rendered  so 
difficult  and  expensive,  and  the  consequences  of  a failure  to 
fulfil  them  will  be  so  severe,  that  a hesitating  state  may 
possibly  prefer  the  path  of  belligerency  as  on  the  whole  the 
path  of  safety.  When  we  come  to  consider  in  detail  the 
duties  of  neutral  governments,1  we  shall  be  in  a position  to 
appreciate  the  necessity  of  this  warning,  in  view  of  certain 
modern  proposals  to  place  upon  them  responsibilities  which 
Washington  and  Jefferson  repudiated  and  no  European  coun- 
try has  ventured  to  assume. 

§ 245. 

The  older  text-writers  divided  neutrality  into  two  kinds. 
The  first,  called  perfect  neutrality,  was  simply  that  which 
Neutrality  and  we  now  understand  by  the  term  neutrality.  It 
Thecon-ectmean-  was  the  condition  of  states  who  took  no  part  in 
mg  of  the  latter.  contest,  but  remained  on  friendly  terms 

with  both  sides.  The  second,  called  imperfect  or  qualified 
neutrality,  occurred  when  a neutral  state  gave  either  active 
aid  or  special  privileges  to  one  of  the  belligerents  under  the 
provisions  of  a treaty  made  before  the  war  and  not  in 
anticipation  of  it.  It  is  hardly  necessary  to  say,  after  the 
historical  view  we  have  just  concluded,  that  the  latter  is  no 

i See  Pt.  IV.,  Ch.  iii. 


THE  NATURE  AND  HISTORY  OF  NEUTRALITY.  485 


longer  recognized,  though  Wheaton  and  even  Halleck  refer 
to  it  as  if  it  still  existed.1  No  state  would  be  permitted  in 
modern  times  to  send  a contingent  to  the  army  or  navy  of  a 
belligerent  on  the  plea  that  it  had  covenanted  to  do  so  long 
before ; and  even  an  agreement  to  give  to  one  side  advan- 
tages denied  to  the  other  would  be  resented,  probably  to  tbe 
point  of  actual  hostilities,  if  no  redress  followed  the  com- 
plaints of  the  injured  belligerent.  But  though  neutrality  is 
legally  one  and  the  same  in  all  cases,  and  cannot  be  sepa- 
rated into  kinds  and  classes,  neutral  states  naturally  divide 
into  those  which  refrain  from  war  of  their  own  free  will, 
and  those  which  are  obliged  by  the  conditions  of  their  exist- 
ence to  take  no  part  in  hostilities  except  for  the  defence  of 
their  frontiers  from  actual  attack.  The  difference  between 
them  is  the  difference  between  neutrality  and  neutralization, 
and  this  we  will  proceed  to  elucidate. 

“ In  ordinary  neutrality  there  are  two  elements  — the 
element  of  abstention  from  acts  of  war,  and  the  element  of 
freedom  to  abstain  or  not  to  abstain  at  pleasure.”2  Take 
away  the  latter  and  we  obtain  neutralization.  A neutral 
state  can,  if  it  pleases,  cease  to  be  neutral  and  join  in  the 
war.  A neutral  individual  may  acquire  a belligerent  char- 
acter by  enrolling  himself  in  the  army  or  navy  of  a power 
engaged  in  hostilities,  and  as  far  as  International  Law  is 
concerned  he  is  perfectly  free  to  do  so,  though  the  munici- 
pal law  of  most  civilized  states  renders  their  subjects  liable 
to  punishment  for  such  an  act.  But  there  are  states  in 
existence  which  are  not  free  to  take  part  in  any  war  which 
may  arise  among  their  neighbors,  and  there  are  individuals 
in  existence  who  lose  certain  valuable  privileges  and  immu- 
nities if  they  engage  in  hostilities.  These  are  neutralized 
states  and  neutralized  individuals;  and  the  process  of  neu- 
tralization may  be  made  to  apply  equally  well  to  seas  and 

1 Wheaton,  International  Laiv,  § 415 ; Halleck,  International  Laio,  Ch. 
XXIV.,  § 2. 

2 Lawrence,  Essays  on  International  Law  (2d  ed.),  p.  144. 


486  THE  NATURE  AND  HISTORY  OF  NEUTRALITY. 

waterways,  and  even  to  such  things  as  buildings,  ambu- 
lances and  ships.  In  the  words  of  Professor  Holland,  to 
neutralize  means  “to  bestow  by  convention  a neutral  charac- 
ter upon  states,  persons  and  things  which  would  or  might 
otherwise  bear  a belligerent  character.” 1 Neutralized  states, 
persons  and  things  occupy  exactly  the  same  position  towards 
hostilities  actually  in  progress  as  neutral  states,  persons  and 
things  ; but  they  differ  from  the  latter  in  that  they  are  hound 
by  international  agreement  to  take  no  part  in  warlike  acts, 
and  are  protected  from  warlike  operations  as  long  as  they 
respect  this  obligation. 

So  great  a change  in  their  legal  position  cannot  be  made 
without  the  consent  of  all  the  parties  affected  thereby.  A 
power  is  incapable  of  neutralizing  its  territory  by  its  own 
mere  declaration,  because  the  rights  and  duties  of  other 
powers  would  be  altered  considerably  by  such  a neutraliza- 
tion, and  their  consent  must  therefore  be  obtained  before  it 
can  be  legally  carried  out.  Similarly  two  or  three  powers 
are  incapable  of  neutralizing  the  territory  of  one  of  their 
number;  for  they  have  no  authority  to  legislate  for  the  civil- 
ized world,  and  to  warn  other  powers  off  a spot  where  beb 
ligerent  operations  could  previously  be  carried  on  by  all  who 
chose  to  go  to  war  with  the  state  which  owned  it.  The 
common  la  w of  nations  cannot  be  overridden  by  the  ipse  dixit 
of  one  of  the  communities  subject  to  it,  or  even  by  a group 
of  them.  The  change,  if  it  is  to  be  internationally  valid, 
must  be  the  result  of  general  agreement.  At  the  very  least 
it  must  be  accepted  by  all  the  important  states  concerned  in 
the  matter.  Any  smaller  number  may  bind  themselves  to 
one  another  to  protect  a territory  from  hostile  operations ; 
but  they  cannot  alter  its  international  status , or  render  an 
attack  upon  it  an  offence  against  the  public  law  of  the  civi- 
lized wrorld.  What  is  true  of  territory  is  true  of  persons 
and  things.  International  Law  gives  to  all  lawful  combat- 
ants the  right  to  use  force  against  certain  individuals  and 

1 Article  in  the  Fortnightly  Review  for  July,  1883. 


THE  NATURE  AND  HISTORY  OF  NEUTRALITY.  487 


certain  property,  and  this  right  cannot  be  taken  away  except 
by  an  agreement  so  general  as  to  amount  to  a legislative  act 
binding  upon  civilized  mankind. 


§ 246. 

The  chief  existing  instances  of  undoubted  neutralization 
give  the  support  of  history  and  practice  to  the  doctrines  we 
have  arrived  at  by  reasoning  from  general  prim  instances  of  true 

. " . Neutralization  ex- 

ciples.  ihere  are  at  the  present  time  three  amined. 
European  states  which  occupy  a position  of  guaranteed  and 
permanent  neutrality,  on  condition  that  they  refrain  from  all 
belligerent  operations  save  such  as  are  necessary  to  protect 
them  from  actual  or  threatened  attack.  The  first  of  these  in 
point  of  time  was  Switzerland.  The  Swiss  Confederation 
succeeded  in  maintaining  both  its  independence  and  its  neu- 
trality from  the  Peace  of  Westphalia  to  the  French  Revolu- 
tion ; but  in  the  stormy  times  which  followed  it  was  torn  by 
internal  dissensions  and  its  territory  was  frequently  invaded 
by  French,  Austrian  and  Russian  armies.  After  the  final 
overthrow  of  Napoleon  a declaration  was  signed  at  Paris 
on  Nov.  20,  1815,  by  the  representatives  of  Great  Britain, 
Austria,  France,  Prussia  and  Russia,  whereby  they  formally 
recognized  the  perpetual  neutrality  of  Switzerland  and  guar- 
anteed the  inviolability  of  its  territory  within  the  limits 
established  by  the  Congress  of  Vienna.1  The  agreement  of 
the  five  Great  Powers  was  held  to  be  sufficient  to  elevate  the 
neutralization  of  Switzerland  into  a principle  of  the  public 
law  of  Europe,  and  its  sanctity  is  none  the  less  real  because 
the  Swiss  people  have  shown  themselves  resolved  to  defend 
the  integrity  of  their  frontiers  by  well-armed  and  admirably 
organized  battalions  of  hardy  mountaineers.  No  case  of 
violation  of  their  territory  has  occurred  since  1815.  The 
political  advantages  of  its  isolation  from  warlike  operations 

1 Wheaton,  History  of  the  Law  of  Nations , Pt.  IV.,  § 17. 


488  THE  NATURE  AND  HISTORY  OF  NEUTRALITY. 

are  so  manifest,  that  none  of  the  neighboring  states  is  likely 
to  venture  upon  invasion,  with  the  certainty  before  it  of 
encountering  a desperate  resistance  from  the  inhabitants 
and  bringing  about  the  armed  intervention  of  some  of  the 
guaranteeing  powers. 

The  case  of  Belgium  must  be  considered  next.  It  was 
united  with  Holland  by  the  Congress  of  Vienna,  and  the 
two  together  were  known  as  the  Kingdom  of  the  Nether- 
lands. But  in  1830  the  Belgians  rose  in  revolt  against  the 
House  of  Orange.  The  King  of  the  Netherlands  requested 
the  mediation  of  the  Great  Powers ; but  to  his  disgust  they 
insisted  upon  intervention.  In  a long  series  of  negotiations, 
diversified  by  a French  attack  on  the  citadel  of  Antwerp 
and  an  English  blockade  of  the  Scheldt,  the  Belgian  fron- 
tiers were  defined  and  Belgium  was  erected  into  a separate 
kingdom,  whose  perpetual  neutrality  was  guaranteed  by  the 
powers.  These  arrangements  were  embodied  in  a great  in- 
ternational treaty  signed  in  November,  1831;  but  Belgium 
and  Holland  did  not  come  to  terms  till  April,  1839.  Their 
agreement  was  confirmed  by  the  five  Great  Powers  in  another 
treaty  of  the  same  date,  which  repeated  the  guarantee  of  the 
independence  and  neutrality  of  the  Belgian  Kingdom,  and 
bound  it  to  refrain  from  interference  in  the  armed  struggles 
of  other  states.1  This  obligation  it  has  loyally  fulfilled;  and 
though  intrigues  against  its  independence  have  not  been 
wanting,  it  has  hitherto  been  preserved  from  attack.  The 
successful  intervention  of  Great  Britain  on  its  behalf  in 
1870  has  already  been  chronicled;2  and  it  is  hardly  possible 
to  doubt  that  one  or  more  of  the  powers  would  assist  it, 
should  its  integrity  be  exposed  to  serious  danger  at  any 
future  time.  The  strictness  with  which  its  duty  of  taking 
no  part  in  the  quarrels  of  other  powers  has  been  construed 
was  very  well  illustrated  in  the  course  of  the  negotiations 

1 Wheaton,  History  of  the  Law  of  Nations , Pt.  IV.,  § 26  ; Fyffe,  Modern 
Europe , II.,  381-390;  Hertslet,  Map  of  Europe  by  Treaty , II.,  859-884, 
996-998.  2 See  § 83. 


THE  NATURE  AND  HISTORY  OF  NEUTRALITY.  489 

which  terminated  in  the  neutralization  of  Luxemburg,  the 
last  of  the  three  European  states  which  have  been  placed  in 
a condition  of  permanent  and  guaranteed  neutrality.  In  the 
general  settlement  of  Europe  after  the  downfall  of  the  first 
Napoleon,  the  Grand  Duchy  had  been  added  to  the  domin- 
ions of  the  King  of  Holland  as  a separate  and  independent 
state,  and  made  into  a member  of  the  German  Confederation. 
As  such  its  capital  was  garrisoned  by  Prussian  troops,  who 
remained  after  the  disruption  of  the  Confederation  in  1866. 
France  objected  to  their  presence,  and  threatened  war  if  they 
were  not  removed.  The  question  was  settled  by  a Confer- 
ence, which  met  at  London  in  May,  1867,  and  placed  the 
Grand  Duchy  under  the  collective  guarantee  of  the  powers 
as  a permanently  neutralized  territory.  Prussia  was  to  with- 
draw its  soldiers,  and  the  fortifications  of  the  city  were  to 
be  demolished.  Belgium,  as  one  of  the  states  immediately 
concerned,  took  part  in  the  Conference  and  assented  to  the 
conclusions  arrived  at  by  the  assembled  plenipotentiaries, 
but  did  not  sign  the  treaty  in  which  they  were  embodied. 
It  contained  a guarantee  of  the  neutrality  of  Luxemburg; 
and  Belgium,  being  itself  a permanently  neutralized  state, 
was  regarded  as  incapable  of  entering  into  an  engagement 
which  might  involve  her  in  war  for  other  purposes  than 
those  of  the  strictest  self-defence.1  This  important  indica- 
tion of  the  nature  and  extent  of  the  obligations  attached  to 
a neutralized  state  by  the  public  law  of  Europe  renders  the 
Conference  of  London  memorable  from  the  point  of  view  of 
the  jurist.  But  it  also  possesses  a further  title  to  his  regard. 
The  five  Great  Powers  agreed  to  invite  Italy  to  join  them  in 
sending  representatives  to  deal  with  the  matters  under  con- 
sideration. Their  invitation  was  held  to  raise  her  to  the 
rank  of  a Great  Power.  She  has  acted  as  such  on  all  subse- 
quent occasions ; and  her  elevation  seems  to  show  that  among 
the  functions  of  primacy  performed  by  the  Great  Powers 2 

i Fyffe,  Modern  Europe , III. , 402  ; Hertslet,  Map  of  Europe  by  Treaty , 
III.,  1803.  2 gee  § 135. 


490  THE  NATURE  AND  HISTORU  OE  NEUTRALITY. 

must  be  reckoned  the  addition  of  fresh  states  to  their  number 
by  a process  of  co-option.  The  political  order  established 
by  the  Conference  of  1867  has  remained  in  existence  up  to 
the  present  time.  On  the  death  of  the  King  of  Holland 
in  1890,  and  the  accession  of  his  daughter  to  the  Dutch 
throne,  Luxemburg  passed  under  the  rule  of  Duke  Adolph 
of  Nassau,  since  by  its  constitution  a female  was  incapable 
of  reigning.  But  the  dissolution  of  what  was  a purely  per- 
sonal tie  has  made  no  difference  in  the  neutralized  condition 
of  the  little  state.  Its  population  sympathized  largely  with 
the  French  in  the  war  of  1870,  and  were  accused  by  Prince 
Bismarck  of  aiding  them  in  various  ways  inconsistent  with 
true  neutral itjv  His  threat  to  disregard  the  integrity  of  the 
Duchy  was,  however,  never  carried  into  effect.  Probably 
it  fulfilled  its  purpose  by  calling  the  attention  of  the  authori- 
ties and  the  people  to  the  tenure  on  which  they  held  their 
exceptional  position.1 

Seas  and  straits  could  be  neutralized  as  well  as  territory, 
if  all  the  maritime  powers,  or  even  the  leading  ones  among 
them  and  those  specially  interested  in  the  area  in  ques- 
tion, agreed  to  refrain  from  naval  hostilities  within  it  and 
enforce  the  observance  of  this  regulation  upon  recalcitrant 
states.  But  no  such  neutralization  has  been  effected  except 
in  the  case  of  the  Suez  Canal,  the  present  position  of  which 
was  described  when  we  were  dealing  with  the  Law  of 
Peace.2  It  should  be  noted  that  the  Convention  of  October, 
1888,  which  imposed  upon  the  canal  and  its  approaches  a 
permanently  neutral  character,  was  signed  by  the  six  Great 
Powers,  and  Turkey,  Spain  and  the  Netherlands.  More- 
over, its  sixteenth  article  contained  a stipulation  that  other 
powers  should  be  invited  to  accede  to  it.  It  bore,  therefore, 
from  the  first  the  .character  of  a great  international  act,  and 
is  likely  to  have  that  quality  more  deeply  impressed  upon  it 
as  time  goes  on.  There  can  be  no  doubt  that  it  has  given 

1 Amos,  Political  and  Legal  Remedies  for  War,  pp.222,  223. 

2 See  § 110. 


THE  NATURE  AND  HISTORY  OP  NEUTRALITY.  49l 

to  the  canal  a definite  status  and  settled  its  position  in 
International  Law.  In  1856  the  Kedive  Said,  in  a conces- 
sion to  M.  de  Lesseps,  declared  that  the  canal  and  its  ports 
should  always  be  open  as  neutral  passages  to  all  ships  of 
commerce.1  This  unilateral  statement  was  invoked  by  the 
great  French  engineer  in  1882,  in  support  of  his  contention 
that  the  British,  in  seizing  the  canal  and  making  it  the 
base  of  their  operations  in  Egypt,  were  guilty  of  unlawful 
interference  with  a neutralized  waterway.  But  he  stood 
almost  alone  in  the  view  he  took  of  their  proceedings.  His 
protests  were  disregarded  by  statesmen,  who  began  soon  after 
they  were  made  the  long  and  intricate  series  of  negotiations 
which  led  to  the  Convention  of  1888.  It  is  obvious  that,  had 
the  canal  been  already  neutralized,  it  would  not  have  been 
necessary  to  spend  five  or  six  years  on  the  discussion  of  plans 
for  imposing  a neutral  character  upon  it. 

The  best  example  of  the  neutralization  of  persons  and 
things  is  to  be  found  in  the  Geneva  Convention  of  1864. 
That  great  international  document  protected  from  inten- 
tional attack,  by  either  belligerent,  surgeons,  nurses,  chap- 
lains and  others  engaged  in  the  care  of  the  sick  and  wounded, 
and  also  extended  the  same  immunity  to  ambulances  and 
military  hospitals,  on  condition  that  they  were  used  exclu- 
sively for  their  proper  purpose,  and  showed  side  by  side  with 
the  national  flag  another  flag  bearing  a red  cross  on  a white 
ground.  A similar  badge  is  to  be  worn  on  the  arm  by  all 
persons  entitled  to  exemption  from  attack  or  capture  under 
the  Convention.2  The  humanitarian  feelings  which  prompted 
the  negotiation  of  this  instrument  have  secured  its  obser- 
vance in  subsequent  wars.  Each  armed  struggle  produces 
a plentiful  crop  of  recriminations  between  the  belligerents ; 
but  on  the  whole  it  seems  clear  that  few  intentional  viola- 
tions of  the  Convention  have  taken  place,  though  the  brutal 
and  debased  persons  who  are  to  be  found  here  and  there  in 

1 British  State  Papers,  Egypt , No.  23  ( 1883 ),  p.  6. 

2 Treaties  of  the  United  States,  pp.  1151-1153. 


492  THE  NATURE  AND  HISTORY  OF  NEUTRALITY. 

the  ranks  of  the  most  civilized  armies  have  undoubtedly- 
taken  advantage  of  opportunities  to  ignore  its  beneficent 
rules,  and  states  have  not  yet  seen  their  way  to  make  a breach 
of  them  punishable  under  their  military  codes.  It  is  obvious 
that  in  the  hurry  and  turnioil  of  an  engagement  incidental 
damage  must  frequently  be  done  to  the  persons  and  things 
connected  with  the  hospital  service  on  either  side.  Stray 
bullets  and  wandering  shells  have  no  respect  for  the  Geneva 
cross.  War  is  in  itself  so  terrible  and  so  destructive  that 
the  best  regulations  can  do  no  more  than  mitigate  its  horrors; 
and  in  the  opinion  of  many  ambulance  surgeons  and  other 
experts  the  increased  efficiency  of  modern  rifles  and  artillery 
will  result  in  such  a multiplication  of  the  wounded  in  future 
conflicts  that  the  present  means  of  dealing  with  them  will 
be  found  miserably  inadequate.  The  Geneva  Convention 
has  been  accepted  by  tbe  United  States  of  America,  all  the 
Great  Powers  of  Europe,  and  a host  of  smaller  states  so 
numerous  as  practically  to  cover  the  whole  field.  It  may  be 
regarded  as  part  of  the  public  law  of  the  civilized  world. 

The  instances  we  have  just  given  support  the  doctrine 
that  no  true  neutralization  can  be  accomplished  without  the 
consent  of  powers  sufficient  by  their 'weight  and  numbers 
to  perform  a legislative  act,  if  not  for  and  on  behalf  of  the 
whole  family  of  nations,  at  least  for  and  on  behalf  of  all 
nations  likely  to  be  interested.  The  Great  Powers  speak 
for  the  whole  of  Europe  in  many  matters,  and  therefore  their 
assent  to  the  political  arrangements  involved  in  the  neutrali- 
zation of  a state  may  be  regarded  as  the  assent  of  Europe, 
unless  any  of  the  smaller  states  openly  signify  their  disa- 
greement. The  United  States  were  not  asked  to  accede  to 
the  neutralization  of  Switzerland,  Belgium  or  Luxemburg, 
partly  because  it  was  felt  that  they  had  no  interest  in  the 
questions  at  stake,  and  partly  because  they  had  declared  from 
the  outset  of  their  career  as  an  independent  nation  that  they 
would  have  nothing  to  do  with  the  political  system  of  the 
Old  World.  But  when  a great  change  for  the  better  in  the 


THE  NATURE  AND  HISTORY  OF  NEUTRALITY.  493 


customs  of  warfare  came  to  be  contemplated,  it  was  clear 
that  International  Law  on  such  a subject  could  not  be  modi- 
fied so  as  to  make  the  new  rules  binding  upon  all,  unless  every 
important  power  gave  its  express  consent.  The  accession  of 
the  Cabinet  of  Washington  to  the  Geneva  Convention  was 
therefore  requested;  and  not  till  it  was  given  in  1882  could 
the  complete  neutralization  of  the  persons  and  things  devoted 
to  the  service  of  the  sick  and  wounded  be  deemed  to  have 
been  embodied  as  an  accepted  principle  in  the  international 
code.  On  the  other  hand  the  neutralization  of  the  Suez 
Canal  may  be  considered  as  having  been  accomplished  by 
the  Convention  of  1888,  which  has  been  neither  accepted  nor 
protested  against  by  the  United  States.  The  reason  for  the 
difference  in  the  two  cases  is  that  American  armies  may  be 
a most  important  factor  in  land  warfare,  as  the  civil  war  be- 
tween the  Northern  and  Southern  states  conclusively  proved, 
whereas  American  ships  make  hardly  any  use  of  the  Suez 
Canal.  In  1895,  the  last  year  for  which  the  figures  are 
available,  only  five  vessels  passed  through  the  canal  under 
the  flag  of  the  United  States,  as  against  2381  belonging  to 
Great  Britain.1 

It  is  necessary  to  add  that  the  word  neutralization  and 
kindred  terms  have  sometimes  been  used  in  a loose  and  inac- 
curate sense  in  treaties  and  other  international  documents. 
Rivers  that  have  been  opened  to  the  peaceful  commerce  of  the 
world,  straits  and  seas  on  the  shores  of  which  each  of  the 
two  contracting  parties  has  bound  itself  not  to  erect  fortifica- 
tions, have  been  spoken  of  as  neutralized ; while  an  arrange- 
ment whereby  a powerful  state  has  undertaken  to  assist  a 
weak  neighbor  in  defending  from  attack  an  important  water- 
way has  been  declared  to  amount  to  a valid  and  complete 
neutralization.2  Precision  of  statement  and  cogency  of 
reasoning  are  impossible  unless  the  words  used  have  a clear 

1 Statesman's  Tear  Book  for  1897,  p.  1057. 

2 For  instances  see  Lawrence,  Essays  on  International  Law  (2d  ed. ), 
pp.  142-156. 


494  THE  NATURE  AND  HISTORY  OF  NEUTRALITY. 


and  recognized  meaning  attached  to  them.  Theological 
controversies  are  not  the  only  ones  that  have  arisen  for  lack 
of  a definition  of  technical  terms.  If  the  phrases  connected 
with  neutralization  were  never  used  save  in  the  sense  that 
our  analysis  shows  to  belong  to  them,  more  than  one  inter- 
national dispute  would  disappear  for  lack  of  material  to  sus- 
tain it.  It  is  fortunate  that  when  in  1817  the  United  States 
and  Great  Britain  restricted  by  mutual  agreement  the  naval 
force  each  was  to  maintain  on  the  Great  Lakes,  and  cut  it 
down  to  a few  gunboats  useful  only  for  the  purposes  of 
police,1  they  did  not  attempt  to  dignify  a small  and  sensible 
restraint  upon  their  sovereign  rights  with  the  high-sounding 
name  of  neutralization ; and  it  would  have  been  well  if  the 
same  reticence  had  been  observed  in  other  cases. 


§ 247. 

We  have  now  dealt  with  neutralized  states,  neutralized 
waterways  and  neutralized  persons  and  things,  but  we  have 
Neutralized  por-  given  no  consideration  to  neutralized  provinces. 

tions  of  unneutral-  . _ . 

ized  states.  I hey  are  portions  of  states ; and  the  bodies  poli- 

tic to  which  they  belong  are  free  to  make  war  at  pleasure. 
The  position  of  a neutralized  part  of  an  unneutralized  state 
is  so  anomalous  that  we  have  been  obliged  to  reserve  it  for 
separate  treatment  in  this  section.  The  most  conspicuous 
instance  is  that  of  Savoy,  which  was  neutralized  in  1815 
by  the  treaties  of  Vienna  and  Paris,  and  made  to  “form  a 
part  of  the  neutrality  of  Switzerland.”  Savoy  then  belonged 
to  Sardinia,  and  it  was  stipulated  that  if  the  neighboring 
powers  were  at  war  the  province  should  be  evacuated  by  Sar- 
dinian soldiers  and  garrisoned  for  the  time  being  by  the 
neutral  troops  of  Switzerland.  When  in  1860  Savoy  was 
ceded  to  France,  both  Switzerland  and  the  Great  Powers 
declared  that  the  original  engagement  of  neutrality  was 
given  in  the  interests  of  all  the  parties  to  the  treaties  of 
1 Treaties  of  the  United  States,  pp.  413-415. 


THE  NATURE  AND  HISTORY  OF  NEUTRALITY.  495 

1815,  and  argued  that,  if  the  province  were  united  to  a great 
military  state  like  France,  there  could  be  little  or  no  secur- 
ity for  the  continuance  of  the  special  condition  imposed  upon 
it.  France  and  Sardinia  on  the  other  hand  contended  that 
the  neutrality  guaranteed  to  Savoy  was  in  favor  of  Sardinia 
only;  but  they  were  willing  to  agree  that  France,  as  succes- 
sor to  Sardinia,  should  fulfil  the  obligations  arising  out  of 
it.1  No  solution  of  the  difficulty  by  general  consent  was 
reached  at  the  time;  but  when  in  1888  the  Federal  Council 
of  Switzerland  complained  of  the  commencement  of  fortifica- 
tions by  France  on  the  neutralized  territory  and  not  far  from 
the  city  of  Geneva,  the  government  of  the  French  Republic 
recognized  the  justice  of  the  Swiss  remonstrance  and  ordered 
the  works  to  be  discontinued.2  It  is  clear,  therefore,  that 
some  limitation  upon  the  ordinary  rights  of  sovereignty  is 
accepted  by  France  as  a condition  of  its  tenure  of  Savoy. 
Yet  it  is  impossible  to  say  how  far  this  limitation  extends, 
and  what  amount  of  recognition  of  Savoyard  neutrality  could 
be  asked  of  a power  which  was  engaged  in  warfare  with 
France.  The  government  of  the  Republic  would  be  free  to 
obtain  conscripts  from  the  population  of  the  province  sup- 
posed to  be  neutralized,  and  to  levy  therein  extraordinary 
taxes  for  the  purpose  of  supporting  the  war.  It  would  not 
be  obliged  to  evacuate  the  territory  and  allow  Swiss  troops 
to  hold  it  during  hostilities ; for  nothing  of  the  kind  was 
done  in  the  course  of  the  great  struggle  with  Germany  in 
1870,  and  the  precedents  of  that  period  would  probably  be 
followed  in  any  future  war.  Rut  if  France  is  free  to  use 
all  the  resources  of  Savoy  for  warlike  purposes,  it  is  hardty 
likely  that  the  enemies  of  France  will  abstain  from  attack- 
ing Savoyard  territory  should  they  deem  themselves  likely 
to  gain  any  military  advantage  from  invasion.  No  German 
troops  attempted  to  penetrate  into  it  during  the  war  of  1870- 

1 Amos,  Political  and  Legal  Remedies  for  War , pp.  217,  218  ; Wheaton, 
International  Law  (Dana’s  ed.),  note  202. 

2 Annual  Register  for  1883,  pp.  269,  270. 


496  THE  NATURE  AND  HISTORY  OF  NEUTRALITY. 

1871;  but  the  strategy  of  their  leaders  did  not  include  mili- 
tary operations  so  far  to  the  south.  Had  the  plan  of  their 
campaign  required  it,  they  would  undoubtedly  have  entered 
the  province  without  hesitation;  and  it  is  difficult  to  believe 
that  Italian  strategists  have  allowed  their  calculations  of  the 
chances  of  invasion  to  be  altered  in  any  way  by  the  shadowy 
neutrality  of  a portion  of  the  frontier  between  Italy  and  her 
northwestern  neighbor.  Considerations  of  a similar  kind 
apply  to  Corfu  and  Paxo,  two  of  the  Ionian  Islands,  which 
were  formally  neutralized  by  the  Great  Powers  when  the 
group  to  which  they  belong  was  handed  over  to  Greece  in 
1864.  The  King  of  Greece  engaged  “to  maintain  such 
neutrality.”1  His  obligations  are  nowhere  expressed  in 
more  definite  phraseology,  and  it  is  obvious  that  they  are  as 
vague  as  words  cau  make  them.  The  Greek  Government 
/ draws  men  and  supplies  from  these  islands,  as  from  other 
portions  of  its  dominions ; and,  that  being  the  case,  justice 
appears  to  demand  that  a power  at  war  with  Greece  should 
be  free  to  attack  and  occupy  them.  When  a whole  state  has 
been  neutralized  its  rights  and  obligations  are  clear;  but 
legal  ingenuity  fails  before  the  attempt  to  define  the  immu- 
nities and  duties  of  a neutralized  part  of  a non-neutralized 
whole.  Its  position  is  anomalous  to  the  last  degree.  We 
may  rest  assured  that  such  an  artificial  arrangement  will  not 
stand  the  strain  of  a serious  war. 

Some  perception  of  the  difficulties  we  have  indicated 
seems  to  have  influenced  the  powers  assembled  in  the  West 
African  Congress  of  Berlin,  when  they  discussed  the  ques- 
tion of  the  neutrality  of  the  territories  comprised  in  the 
conventional  basin  of  the  Congo,  some  of  which  belong  to 
various  European  states.  Mr.  Kasson,  the  American  pleni- 
potentiary, proposed  that  the  districts  in  question  should  be 
permanently  neutralized  under  the  guarantee  of  the  signa- 
tory powers.  But  though  the  project  brought  forward  by 
him  received  weighty  support,  the  Congress  finally  decided 
1 Holland,  European  Concert  in  the  Eastern  Question,  pp.  46-64. 


THE  NATURE  AND  HISTORY  OF  NEUTRALITY.  497 

against  it,  on  the  ground  that  a belligerent  state  could  not 
be  required  to  deprive  itself  of  a part  of  its  means  of  action, 
or  to  refrain  from  using  a portion  of  its  dominions.  The 
representative  of  the  United  States  pointed  out  that  the 
development  of  America  in  the  colonial  epoch  had  been 
greatly  retarded  by  wars  between  the  European  powers  who 
held  territorial  possessions  within  it,  and  declared  that  his 
proposition  was  formulated  with  a view  to  saving  Africa 
from  similar  calamities.  The  object  of  the  American  Gov- 
ernment met  with  general  concurrence,  and  an  attempt  was 
made  to  realize  it  in  the  Final  Act  of  the  Conference,  which 
was  signed  on  Feb.  26, 1885.  The  eleventh  article  provided 
that  “ in  case  a power  exercising  rights  of  sovereignty  or 
protectorate  in  the  counties  mentioned  in  article  1,  and 
placed  under  the  free-trade  system,  shall  be  involved  in  a 
war,  then  the  High  Signatory  Parties  to  the  present  Act, 
and  those  who  shall  hereafter  adopt  it,  bind  themselves  to 
lend  their  good  offices  in  order  that  the  territories  belonging 
to  this  power  and  comprised  in  the  conventional  free-trade 
zone,  shall,  by  the  common  consent  of  this  power  and  the 
other  belligerent  or  belligerents,  be  placed  during  the  war 
under  the  rule  of  neutrality,  and  considered  as  belonging  to 
a non-belligerent  state,  the  belligerents  henceforth  abstain- 
ing from  extending  hostilities  to  the  territories  thus  neutral- 
ized, and  from  using  them  as  a base  for  warlike  operations.” 
Temporary  exemption  from  hostilities  by  the  consent  of  all 
the  parties  to  the  war  is  very  different  from  permanent 
neutralization.  But  it  may  be  possible  when  the  latter  is 
impossible.  Should  the  case  contemplated  above  ever  arise, 
it  will  be  interesting  to  watch  whether  the  belligerent 
powers  agree  to  make  the  arrangement  indicated,  or  are 
content  to  regard  it  as  a counsel  of  perfection  inapplicable 
to  mundane  affairs.1 

1 See  Protocols  and  General  Act  of  the  West  African  Conference,  in 
British  State  Papers,  Africa,  No.  4 {1885),  pp.  140-149,  183-186,  266- 
258,  307. 

2 K 


498  THE  NATURE  AND  HISTORY  OF  NEUTRALITY. 


§ 248. 

One  of  the  most  important  distinctions  in  the  whole  range 
of  International  Law  is  that  between  the  two  senses  of  the 
The  divisions  of  word  neutral  when  used  as  a substantive.  It 

the  Law  of  Neu-  . 

traiity.  may  mean  either  a neutral  state  or  an  individ- 

ual who  is  a subject  and  citizen  of  a neutral  state.  The 
rights  and  obligations  of  the  former  differ  widely  from  those 
of  the  latter;  and  yet,  OAving  to  the  ambiguity  of  the  term 
applied  indifferently  to  both,  even  approved  writers  some- 
times use  language  calculated  to  cause  error  and  confusion. 
Halleck,  for  instance,  says  of  neutrals,  “ While  in  some  re- 
spects their  trade  and  commerce  may  be  increased  in  extent 
and  profit,  it  is  restricted  with  respect  to  blockades  and  sieges 
and  the  carrying  of  contraband,  and  their  vessels  are  sub- 
jected to  the  inconvenience  and  annoyance  of  visit  and  search. 
Not  only  are  they  obliged  to  maintain  strict  impartiality 
towards  the  belligerents,  but  they  are  bound  to  prevent  and 
punish  any  violation  of  the  rights  of  neutrality  by  either  of 
the  parties  at  war  with  each  other.”1  Of  these  two  sen- 
tences the  first  applies  exclusively  to  neutral  individuals, 
the  second  to  neutral  states.  Yet  there  is  nothing  in  the 
text  to  suggest  the  difference,  and  a student  reading  them 
without  the  aid  of  other  sources  of  information  would  imag- 
ine either  that  neutral  vessels  of  war  were  used  as  trading- 
ships  and  subjected  to  belligerent  search,  or  that  neutral 
individuals  were  under  an  obligation  to  punish  any  viola- 
tions of  neutrality  by  the  parties  to  the  war.  Both  proposi- 
tions are  not  only  untrue,  but  the  very  reverse  of  the  truth. 
It  would  be  absurd  to  suppose  that  Halleck  wished  to  convey 
impressions  so  obviously  wrong.  His  mistake  lay  in  neglect- 
ing to  make  a distinction  at  the  outset  between  the  two  great 
divisions  into  which  the  whole  Law  of  Neutrality  naturally 
falls.  They  are 


1 Halleck,  International  Law , Cli.  XXIV.,  § 3. 


THE  NATURE  AND  HISTORY  OF  NEUTRALITY.  499 


I.  Rights  and  obligations  as  between  Belligerent  States 
and  Neutral  States. 

II.  Rights  and  obligations  as  between  Belligerent  States 
and  Neutral  Individuals. 

The  distinction  has  only  to  be  stated  in  order  to  be  recog- 
nized as  just  and  necessary.  A neutral  state  has  many  rights 
against  a belligerent  which  from  the  nature  of  the  case  a 
neutral  individual  cannot  have,  and  is  under  many  obliga- 
tions from  which  a neutral  individual  is  free.  On  the  other 
hand  the  neutral  individual  may  do  many  acts  which  the 
neutral  state  may  not  do,  and  is  subjected  to  many  interfer- 
ences from  which  the  neutral  state  is  free.  And  just  as  the 
rights  and  obligations  differ  in  the  two  cases,  so  also  do  the 
remedies.  When  state  wrongs  state,  the  remedy  is  inter- 
national; but  when  a neutral  individual  indulges  in  conduct 
which  a belligerent  has  a right  to  prevent,  the  injured  gov- 
ernment strikes  directly  at  him  and  punishes  him  in  its  own 
courts.  The  neutral  state  of  which  he  is  a subject  has  noth- 
ing to  do  with  the  matter,  unless  the  belligerent  attempts  to 
punish  for  acts  deemed  innocent  by  International  Law  or  to 
inflict  severer  penalties  than  its  rules  allow.  As  we  con- 
sider in  detail  the  rights  and  obligations  of  neutrality,  the 
distinction  we  have  just  drawn  in  outline  will  become  fully 
apparent. 

Our  two  main  divisions  work  out  into  a variety  of  subor- 
dinate heads,  each  of  which  will  be  dealt  with  in  a separate 
chapter.  The  following  table  shows  in  a graphic  manner 
the  way  in  which  we  propose  to  arrange  the  subject. 


(1)  Duties  of  a Belligerent  State  towards 


Law  of  Neutrality  as  between 
State  and  State. 


Neutral  States. 

(2)  Duties  of  a Neutral  State  towards 


Belligerent  States. 

Ordinary  Neutral  Commerce. 
II.  Law  of  Neutrality  as  between  Blockade. 


States  and  individuals. 


(3)  Contraband  Trade. 

(4)  Unneutral  Service. 


' CHAPTER  II. 


THE  DUTIES  OF  BELLIGERENT  STATES  TOWARDS  NEUTRAL 

STATES. 

§ 249. 

The  law  of  nations  is  fairly  explicit  on  the  subject  of  the 
obligations  of  belligerent  states  in  their  dealings  with  those 
of  their  neighbors  who  remain  neutral  in  the  contest.  The 
first  and  most  important  of  their  duties  in  this  connection  is 

To  refrain  from  carrying  on  hostilities  within  neutral 
territory. 

We  have  already  seen  that,  though  this  obligation  was  recog- 
nized in  theory  during  the  infancy  of  International  Law,  it 
(i)  To  refrain  was  °ffen  very  imperfectly  observed  in  practice, 
hosttiffles^thin  But  in  modern  times  it  has  been  strictly  en- 
neutrai  territory,  forced^  and  any  state  which  knowingly  ordered 

warlike  operations  to  be  carried  on  in  neutral  territory,  or 
refused  to  disavow  and  make  reparation  for  such  acts  when 
committed  by  its  subordinates  on  their  own  initiative,  would 
bring  down  upon  itself  the  reprobation  of  civilized  mankind. 
Hostilities  may  be  carried  on  in  the  territory  of  either  bel- 
ligerent, on  the  high  seas  and  in  territory  belonging  to  no 
one.  Neutral  land  and  neutral  territorial  waters  are  sacred. 
No  acts  of  warfare  may  lawfully  take  place  within  them,  and 
if  any  are  unlawfully  entered  upon,  the  offending  belliger- 
ent ought  to  make  ample  reparation  and  apology.  The  rule 
is  strictly  construed  against  warring  powers.  Even  when 

500 


THE  DUTIES  OF  BELLIGERENT  STATES,  ETC.  501 

their  cruisers  have  begun  the  chase  of  an  enemy  vessel  on 
the  high  seas,  they  may  not  follow  it  into  neutral  waters, 
and  there  complete  the  capture. 

Nevertheless  all  authorities  admit  that  the  exigencies  of 
self-defence  will  justify  a temporary  violation  of  neutral 
territory.  But  it  must  be  confined  within  the  strictest  limits 
required  by  the  necessity  of  the  case,  and  the  power  which 
is  obliged  to  resort  to  it  should  tender  a prompt  apology. 
The  act  is  illegal ; but  if  the  necessity  is  sufficiently  impera- 
tive, a wise  neutral  will  condone  it  on  the  tender  of  proper 
explanations.  The  whole  question  was  threshed  out  in  the 
case  of  the  Caroline , which  occurred  in  the  course  of  the 
rebellion  against  the  British  authorities  in  Canada  during 
the  winter  of  1837-1838.  The  insurgents  had  occupied 
Navy  Island,  an  island  in  the  Niagara  River,  through  the 
midst  of  which  the  boundary  between  the  United  States  and 
the  British  possessions  runs,  and  with  the  aid  of  American 
sympathizers  they  were  using  the  steamer  Caroline  to  trans- 
port munitions  of  war  and  armed  men  to  the  island.  Prepa- 
rations were  being  made  to  cross  from  it  to  the  Canadian  side, 
when  the  British  commander  determined  to  put  an  end  to 
the  danger  by  seizing  the  insurgent  vessel.  He  sent  a body 
of  men  to  capture  her  in  the  night  at  her  usual  moorings  in 
Canadian  waters.  She  had,  however,  been  moved  over  to 
the  American  side,  whither  she  was  followed  by  the  attack- 
ing party,  who  boarded  and  captured  her,  and  then  set  her 
on  fire  and  sent  her  adrift  down  the  rapids  and  over  the  falls 
of  Niagara.  A correspondence  ensued  between  the  two  gov- 
ernments, each  of  which  deemed  that  it  had  a grievance 
against  the  other.  The  Cabinet  of  Washington  complained 
of  the  attack  as  an  outrage  upon  the  territory  of  the  United 
States,  and  the  British  Ministry  replied  by  calling  attention 
to  the  impunity  enjoyed  by  the  insurgents  in  fitting  out 
armed  expeditions  on  American  soil.  No  satisfactory  result 
was  arrived  at,  and  after  a time  the  matter  dropped,  till  its 
reappearance  in  a more  threatening  form  was  caused  by  the 


502 


THE  DUTIES  OP  BELLIGERENT  STATES 


arrest  of  Alexander  McLeod  in  January,  1841,  within  the 
territory  of  the  State  of  New  York.  He  had  been  a member 
of  the  party  which  boarded  the  Caroline , and  was  put  on  his 
trial  for  the  murder  of  one  Durfee  who  had  been  killed 
in  the  attack.  Great  Britain  demanded  his  release  on  the 
ground  that  he  was  acting  under  orders  from  his  command- 
ing officer  and  was  therefore  an  agent  of  the  government. 
The  act  in  which  he  took  part  was  a state  act,  for  which 
the  nation  assumed  full  responsibility.  It  was  argued  that 
under  such  circumstances  an  individual  could  not  be  held 
answerable  in  his  private  capacity;  and  Mr.  Webster,  then 
Secretary  of  State  at  Washington,  admitted  the  justice  of 
the  contention,  while  pointing  out  that,  as  the  case  had  come 
before  the  courts,  the  release  of  McLeod  must  be  brought 
about  by  judicial  procedure  and  could  not  be  effected  by 
administrative  order.  Unfortunately  technical  difficulties, 
since  removed  by  act  of  Congress,  blocked  the  way;  but  the 
accused  was  at  last  found  “not  guilty  ” by  a court  of  the  state 
of  New  York,  and  in  consequence  regained  his  liberty  on  the 
main  issue  and  not  on  the  point  raised  by  the  British  Gov- 
ernment. During  the  correspondence  upon  his  case  the 
question  of  the  capture  of  the  Caroline  was  revived,  and  Lord 
Ashburton,  who  had  been  sent  to  Washington  in  1842  to 
settle  all  outstanding  difficulties  between  England  and 
America,  expressed  regret  for  the  violation  of  neutral  terri- 
tory and  the  absence  of  any  explanation  and  apology  at  the 
time.  He,  however,  contended  that  the  attack  on  the  Caro- 
line was  justifiable  by  the  test  that  Mr.  W ebster  himself  had 
supplied  in  the  statement  that,  in  order  to  excuse  such  an 
act,  it  was  necessary  “to  show  a necessity  of  self-defence, 
instant,  overwhelming,  leaving  no  choice  of  means  and  no 
moment  for  deliberation.  ” The  American  Government  ac- 
cepted these  assurances  in  a conciliatory  spirit,  and  the 
incident  then  terminated.1  It  may  be  held  to  show  that 

1 Wharton,  International  Law  of  the  United  States,  §§  21,  50  c.,  350  ; 
Annual  Register  for  1S4J,  pp.  310-317  ; Annual  Register  for  1842,  pp. 
319-320. 


TOWARDS  NEUTRAL  STATES.  503 

temporary  violations  of  neutral  territory,  resorted  to  under 
the  stress  of  a great  emergency  and  limited  in  point  of  time 
and  magnitude  to  the  warding  off  of  the  danger  which  caused 
them,  are  but  technical  offences,  to  be  apologized  for  on  the 
one  hand  and  condoned  on  the  other,  but  not  regarded  as 
serious  wrongs  for  which  substantial  reparation  is  due. 

§ 250. 

The  rule  of  abstention  from  active  hostility  in  neutral 
waters  or  on  neutral  land  has  received  in  comparatively 
recent  times  an  obvious  and  reasonable  extension.  It  is  now 
the  duty  of  belligerents 

To  abstain  from  making  on  neutral  territory  direct  prepara- 
tions for  acts  of  hostility. 

Warlike  expeditions  may  not  be  fitted  out  within  neutral 
borders,  nor  may  neutral  land  or  waters  be  made  a base  of 
operations  against  an  enemy.  The  fighting  (2)  Xoabstain 
forces  of  a belligerent  may  not  be  reinforced  or  n°u^^rritory 
recruited  in  neutral  territory,  and  supplies  of  foTact* o7hostu-ns 
arms  and  warlike  stores  or  other  equipments  of  ,ty' 
direct  use  for  war  may  not  be  obtained  therein.  But  these 
prohibitions  do  not  extend  to  remote  uses,  and  the  supplies 
and  equipments  that  are  useful  for  such  purposes  as  sustain- 
ing life  or  carrying  on  navigation.  Provisions  may  be  pur- 
chased by  belligerent  ships  lying  in  neutral  ports,  and  they 
may  take  on  board  masts,  spars  and  cordage,  and  even 
undergo  repairs ; but  nothing  beyond  what  is  necessary  to 
make  them  seaworthy  must  be  done  to  them.  Any  structural 
changes  that  increase  their  efficiency  as  instruments  of  attack 
and  defence  are  strictly  forbidden,  as  well  as  any  augmenta- 
tion of  their  warlike  force.  A neutral  state  may,  if  it 
chooses,  restrict  the  amount  of  innocent  supplies  allowed  to 
belligerent  ships  who  take  advantage  of  the  hospitality  of 


504 


THE  DUTIES  OP  BELLIGERENT  STATES 


its  ports  and  waters,  and  a usage  is  springing  up  of  permit- 
ting such  vessels  to  take  on  board  only  a limited  quantity  of 
coal.  A distinction  must,  however,  be  drawn  between  pro- 
hibitions which  depend  entirely  upon  the  will  of  the  neutral 
and  prohibitions  which  are  imposed  by  International  Law. 
The  former  can  be  made  or  unmade,  strengthened  or  relaxed 
at  pleasure ; and  as  long  as  they  are  reasonable  in  themselves 
and  applied  with  absolute  impartiality  to  both  sides  in  the 
struggle,  no  power  has  any  reason  to  complain.  The  latter 
are  fixed  and  constant,  and  if  a belligerent  ignores  them  or 
a neutral  suffers  them  to  be  ignored,  the  aggrieved  parties, 
whether  neutral  or  belligerent,  can  demand  reparation  and 
take  means  to  prevent  a repetition  of  the  offence. 

We  have  seen  that  a belligerent  is  bound  not  to  use  neu- 
tral territory  as  a base  of  operations,  or  as  a convenient  place 
for  the  organization  of  warlike  expeditions  which  may  pro- 
ceed from  thence  to  attack  the  enemy  or  prey  upon  his  com- 
merce. But  it  is  impossible  to  understand  the  nature  and 
extent  of  these  obligations  without  an  examination  of  the 
exact  sense  to  be  attached  to  the  two  phases,  “ base  of  opera- 
tions” and  “warlike  expedition.”  The  former  is  a technical 
term  of  the  military  art,  and  was  introduced  into  Interna- 
tional Law  when  the  growing  sense  of  state-duty  rendered 
it  necessary  to  define  with  accuracy  the  limits  of  belligerent 
liberty  and  neutral  forbearance.  It  is  to  be  found  in  the 
second  of  the  three  rules  of  the  Treaty  of  Washington  of 
1871 ; 1 but  the  Geneva  arbitrators  did  not  attempt  to  explain 
it  in  their  award.  Hall  quotes  from  Jomini,  the  great  French 
writer  on  the  art  of  war,  a definition  of  a base  of  operations 
as  a place  or  station  “ from  which  an  army  draws  its  resources 
and  reinforcements,  that  from  which  it  sets  forth  on  an  offen- 
sive expedition,  and  in  which  it  finds  a refuge  at  need.”2 
He  goes  on  to  contend  that  “ continued  use  is  above  all  things 
the  crucial  test  of  a base  ” ; and  it  is  difficult  to  resist  the 


i See  § 263. 


2 International  Law , § 221. 


TOWARDS  NEUTRAL  STATES. 


505 


arguments  in  favor  of  this  view,  which  applies  to  a fleet  or 
a single  ship  as  well  as  to  an  army  or  a detachment  of  troops. 
The  drawing  of  supplies  once  or  twice  from  a given  point  in 
the  course  of  long-continued  hostilities  will  not  make  it  into 
a base.  Constant  communication  must  be  kept  up  with  it, 
from  it  a stream  of  supplies  must  flow,  and  the  way  to  it 
must  be  open  for  trains  and  convoys  to  pass  and  repass. 
General  Sherman,  in  his  march  through  Georgia  in  the 
autumn  of  1864,  was  said  to  have  cut  himself  off  from  his 
base,  because  for  several  weeks  he  was  out  of  reach  of  com- 
munications from  his  own  side,  nor  could  he  draw  stores  and 
reinforcements  from  any  point  in  the  possession  of  the 
northern  forces.  The  fact  that  he  took  provisions  and  forage 
from  place  after  place  passed  by  his  army  on  its  march  did 
not  make  any  of  them  into  a base  of  operations,  because  the 
element  of  continuous  use  was  wanting.  Now  if  we  apply 
those  considerations  to  assist  us  in  determining  the  sense  to 
be  put  upon  the  phrase  when  we  find  it  in  a rule  of  Inter- 
national Law,  we  shall  be  forced  to  the  conclusion  that  a 
belligerent  does  not  make  neutral  territory  or  a neutral  port 
into  a base  of  operations  by  obtaining  in  it  once  or  twice,  or 
at  infrequent  intervals,  such  things  as  provisions,  coal£  and 
naval  stores.  It  is  true  that  there  are  some  articles  so 
directly  useful  for  purposes  of  hostility  that  to  take  even  a 
single  supply  of  them  is  forbidden.  But  these  restraints  are 
imposed  by  the  law  of  nations  directly  and  in  so  many  words. 
They  are  not  left  to  be  derived  by  construction  from  an 
interpretation  of  general  terms.  Other  matters  must  be  re- 
ferred to  in  the  prohibition  of  the  use  of  neutral  territory  as 
a base  of  operations.  Undoubtedly  it  is  aimed  at  the  fre- 
quent drawing  of  stores  and  equipments  from  depots  situated 
in  neutral  territory  and  always  open  to  the  belligerent  for 
the  replenishment  of  his  magazines.  Each  separate  supply 
may  be  innocent  in  itself,  or  at  most  of  a doubtful  nature. 
It  is  their  constant  recurrence  which  makes  them  illegal. 

We  have  next  to  consider  what  is  meant  by  a warlike  ex- 


506  THE  DUTIES  OF  BELLIGERENT  STATES 

pedition.  Its  simplest  form  was  exemplified  in  the  case  of 
the  Twee  Gebroeders.1  An  English  ship  of  war  lying  in  neu- 
tral Prussian  waters  had  sent  out  boats,  which  captured 
several  Dutch  merchantmen  just  outside  the  limits  of  neu- 
tral jurisdiction,  and  Lord  Stowell  released  them  on  the 
ground  that  no  proximate  acts  of  war  could  be  allowed  to 
originate  in  neutral  territory.  This  occurred  in  1800,  and 
some  years  afterwards  the  more  complex  Terceira  affair  de- 
veloped still  further  the  doctrine  of  expeditions.  In  1828 
a civil  war  broke  out  in  Portugal  between  the  partisans  of 
Donna  Maria,  the  youthful  constitutional  sovereign,  and 
those  of  her  uncle,  Don  Miguel,  who  had  seized  the  throne 
as  the  champion  of  absolutism.  A body  of  troops  in  the  ser- 
vice of  Donna  Maria,  being  driven  out  of  Portugal,  took 
refuge  in  England,  and,  along  with  other  Portuguese  adher- 
ents of  the  constitutional  cause,  endeavored  to  fit  out  an 
expedition  in  favor  of  their  mistress.  The  British  Govern- 
ment warned  them  that  it  would  not  allow  the  execution  of 
such  a design,  and  was  informed  in  reply  that  the  only  object 
of  the  refugees  was  to  send  unarmed  Portuguese  and  Brazil- 
ian subjects  in  unarmed  merchant  vessels  to  Brazil.  Early 
in  1829  about  seven  hundred  men  under  Count  Saldanha 
embarked  at  Plymouth  in  four  unarmed  vessels,  nominally 
for  Brazil,  but  really  for  Terceira,  one  of  the  Azores  which 
had  remained  faithful  to  Donna  Maria.  They  were  unarmed, 
but  under  military  command;  and  the  arms  intended  for  them 
had  previously  been  shipped  as  merchandise  from  another 
port.  Off  Port  Praya  in  Terceira  they  were  intercepted  by 
Captain  Walpole  of  the  Ranger , who  had  been  despatched 
from  England  to  see  that  they  did  not  land  in  the  Azores. 
He  told  Count  Saldanha  that  they  were  free  to  go  where  they 
would,  except  to  the  islands.  On  the  refusal  of  the  Portu- 
guese commander  to  give  up  his  purpose  or  yield  to  anything 
but  force,  his  vessels  were  escorted  to  a point  within  five 
hundred  miles  of  the  English  Channel.  Captain  Walpole 
1 Robinson,  Admiralty  Reports , III., -162. 


TOWARDS  NEUTRAL  STATES. 


507 


then  returned  to  Terceira,  and  the  baffled  expedition  put  into 
Brest.  The  case  established  the  doctrine  that,  when  a war- 
like expedition  is  fitted  out  on  neutral  ground  against  a bel- 
ligerent, its  individual  members  need  not  be  armed  in  order 
to  bring  it  within  the  purview  of  the  law,  if  only  they  are 
organized  as  soldiers  and  placed  under  military  command. 
The  conduct  of  the  British  ministers  was  challenged  at  the 
time  in  Parliament,  but  they  secured  a majority  in  both 
Houses.  Jurists  have  generally  held  that  they  were  right 
in  their  view  of  the  illegality  of  the  expedition,  and  wrong 
in  the  means  they  took  to  stop  it.  They  should  have  pre- 
vented its  departure  from  British  waters  where  they  had 
jurisdiction,  instead  of  coercing  it  in  Portuguese  waters  and 
on  the  high  seas  where  they  had  none.  By  the  proceedings 
they  ordered  they  violated  the  territorial  sovereignty  of 
another  state  in  their  zeal  to  prevent  a violation  of  their 
own.1 

Another  point  in  connection  with  expeditions  was  raised 
in  1870,  when  a large  number  of  Frenchmen  and  Germans 
resident  in  the  United  States  returned  to  their  own  country 
at  the  outbreak  of  the  Franco-Prussian  War,  in  order  to  fulfil 
their  obligation  of  military  service.  As  long  as  they  trav- 
elled singly  or  in  small  groups  as  ordinary  passengers,  no 
international  question  could  by  any  possibility  arise.  But 
in  one  case  as  many  as  twelve  hundred  French  subjects  em- 
barked at  New  York  in  two  French  ships  which  carried  a 
cargo  of  rifles  and  ammunition.  The  attention  of  Mr.  Fish, 
then  Secretary  of  State  in  President  Grant’s  Cabinet,  was 
called  to  the  matter.  He  decided  that  the  vessels  could  not 
be  looked  upon  as  constituting  a warlike  expedition  against 
Germany;  and  there  can  be  little  doubt  that  he  was  right.2 
The  Frenchmen  were  unarmed  and  unofficered.  There  was 
no  attempt  to  submit  them  to  military  discipline,  and  though 

1 Pliillimore,  International  Law , III.,  §§  CLIX.,  CLX.;  Pitt  Cobbett,  Lead- 
ing Cases  on  International  Law,  pp.  185,  186. 

2 Hall,  International  Law,  § 222. 


508 


THE  DUTIES  OF  BELLIGERENT  STATES 


it  was  not  denied  that  they  would  be  enrolled  in  the  fighting 
forces  of  their  country  as  soon  as  they  reached  its  soil,  it  was 
held  that  they  did  not  leave  New  York  in  an  organized  con- 
dition. Their  warlike  uses  were  too  remote  for  them  to  be 
considered  as  a portion  of  the  combatant  forces  of  France  in 
such  a sense  that  American  neutrality  was  violated  by  their 
departure,  though  they  could  have  been  made  prisoners  of 
war  if  the  vessels  which  carried  them  had  been  captured  on 
the  voyage  by  German  cruisers. 

The  three  cases  we  have  given  will  enable  us  to  form  a 
fair  idea  of  what  constitutes  a warlike  expedition.  It  must 
go  forth  with  a present  purpose  of  engaging  in  hostilities ; it 
must  be  under  military  or  naval  command;  and  it  must  be 
organized  with  a view  to  proximate  acts  of  war.  But  it 
need  not  be  in  a position  to  commence  fighting  the  moment 
it  leaves  the  shelter  of  neutral  territory ; nor  is  it  necessary 
that  its  individual  members  should  carry  with  them  the 
arms  they  hope  soon  to  use.  When  a belligerent  attempts 
to  organize  portions  of  his  combatant  forces  on  neutral  soil 
or  in  neutral  waters,  he  commits  thereby  a gross  offence 
against  the  sovereignty  of  the  neutral  government,  and 
probably  involves  it  in  difficulties  with  the  other  belligerent, 
who  suffers  in  proportion  to  his  success  in  his  unlawful  enter- 
prise. The  injured  neutral  may  not  only  demand  reparation 
and  indemnity,  but  may  also  use  force,  if  necessary,  to  pre- 
vent the  departure  of  expeditions  from  its  territory  or  seize' 
the  persons  and  things  of  which  they  are  composed.  The 
exact  limits  of  its  powers  and  duties  in  such  cases  will  be 
discussed  when  we  deal  with  the  obligations  of  neutral  states 
towards  belligerent  states.1  Here  we  need  do  no  more  than 
lay  down  the  general  principle  that  its  operations  should  be 
confined  to  its  own  territory  and  its  own  jurisdiction,  with- 
out stopping  to  inquire  whether  there  are  any  exceptions  to 
this  rule. 


l See  § 264. 


TOWARDS  NEUTRAL  STATES. 


509 


§ 251. 

We  will  consider  next  the  duty  of  belligerent  states 

To  obey  all  reasonable  regulations  made  by  neutral  states  for 
the  protection  of  their  neutrality . 

This  duty  relates  chiefly,  though  not  exclusively,  to  mari- 
time affairs.  The  land  forces  of  the  combatants  are  not 
permitted  to  enter  neutral  territory;  but,  un-  (3)  Toobeyaii 
less  a neutral  expressly  forbids  the  entry  of  tionsmadeby 

. ...  , , , ri  • neutral  states  for 

belligerent  war-ships,  they  may  Ireely  enjoy  the  protection  of 
the  hospitality  of  its  ports  and  waters.  Per-  thei‘ neutrallty- 
mission  is  assumed  in  the  absence  of  any  notice  to  the  con- 
trary, but  nevertheless  it  is  a privilege  based  upon  the 
consent  of  the  neutral,  and  therefore  capable  of  being  accom- 
panied by  any  conditions  he  chooses  to  impose.  Belligerent 
commanders  can  demand  that  they  shall  not  be  asked  to  sub- 
mit to  unjust  and  unreasonable  restraints,  and  that  whatever 
rules  are  made  shall  be  enforced  impartially  on  both  sides. 
But  further  they  cannot  go.  Where  they  enter  on  suffer- 
ance they  must-respect  the  wishes  of  those  who  permit  their 
presence.  Only  when  their  vessels  are  driven  by  stress  of 
weather,  or  otherwise  reduced  to  an  unseaworthy  condition, 
can  they  demand  admission  as  a matter  of  strict  law.  Their 
right  to  shelter  under  such  circumstances  is  called  the  Right 
of  Asylum,  and  it  cannot  be  refused  by  a neutral  without  a 
breach  of  international  duty. 

In  recent  times  neutral  states  have  acted  upon  their  right 
of  imposing  conditions  on  belligerent  vessels  visiting  their 
ports.  The  twenty-four  hours  rule  is  the  oldest  and  the 
most  common.  It  lays  down  that,  when  war  vessels  of 
opposing  belligerents  are  in  a neutral  port  at  the  same  time, 
or  when  war  vessels  of  one  side  and  merchant  vessels  of  the 
other  are  in  the  like  predicament,  at  least  twenty-four  hours 
shall  elapse  between  the  departure  of  those  who  leave  first 
and  the  departure  of  their  opponents.  The  object  of  this 


510 


THE  DUTIES  OF  BELLIGERENT  STATES 


injunction  is  to  prevent  the  occurrence  of  any  fighting  either 
in  the  waters  of  the  neutral  or  so  close  to  them  as  to  be  dan- 
gerous to  vessels  frequenting  them.  Sometimes  the  word 
of  the  commanders  that  they  will  not  commence  hostilities 
in  or  near  neutral  territorial  waters  has  been  accepted  as 
sufficient.  Greater  precautions  were  generally  taken  for  the 
restraint  of  privateers ; but  the  practical  abolition  of  priva- 
teering by  the  Declaration  of  Paris  has  made  obsolete  the 
distinction  between  two  classes  of  belligerent  cruisers.  The 
possibility  of  evading  the  twenty-four  hours’  rule  was  shown 
by  the  conduct  of  the  United  States  steamer  Tuscarora  at 
Southampton,  in  December,  1861,  and  January,  1862.  The 
Southern  cruiser  Nashville  was  undergoing  repairs  in  the 
harbor,  and  by  keeping  steam  up,  claiming  to  precede  her 
whenever  she  attempted  to  depart,  and  then  returning  within 
a day,  the  Tuscarora  really  blockaded  her  in  a British  port. 
In  the  end  a British  ship  of  war,  exercising  a right  which 
a neutral  possesses  in  extreme  cases,1  escorted  the  Nashville 
past  the  Tuscarora  and  out  to  sea,  while  the  latter  was  for- 
bidden to  leave  the  port  for  twenty-four  hours.2  This  and 
other  circumstances  caused  the  British  Government  to  issue 
on  Jan.  31,  1862,  a series  of  neutrality  regulations  more 
stringent  than  any  hitherto  published.  They  provided  that 
no  ship  of  war  of  either  belligerent  should  be  permitted  to 
leave  a British  port  from  which  a ship  of  war  or  merchant 
vessel  of  the  other  belligerent  had  previously  departed,  until 
after  the  expiration  of  at  least  twenty-four  hours  from  the 
departure  of  the  latter.  They  laid  down  further  that  war 
vessels  of  either  belligerent  should  be  required  to  depart 
within  twenty-four  hours  of  their  entry,  unless  they  needed 
more  time  for  taking  in  innocent  supplies  or  effecting  lawful 
repairs,  in  which  case  they  were  to  obtain  special  permission 
to  remain  for  a longer  period,  and  were  to  put  to  sea  within 

1 Wheaton,  International  Law  (Dana’s  ed.),  note  208. 

2 British  State  Papers,  North  America,  No.  2 (1873),  pp.  242-244 ; 
Wheaton,  International  Law  (Lawrence’s  ed.),  note  216. 


TOWARDS  NEUTRAL  STATES. 


511 


twenty-four  hours  after  the  reason  for  their  remaining  ceased. 
They  might  freely  purchase  provisions  and  other  things 
necessary  for  the  subsistence  of  their  crews ; but  the  amount 
of  coal  they  were  allowed  to  receive  was  limited  to  as  much 
as  was  necessary  to  take  them  to  the  nearest  port  of  their 
own  country.  Moreover,  no  two  supplies  of  coals  were  to  be 
obtained  in  British  waters  within  three  months  of  each 
other.1  These  restrictions  upon  the  liberty  of  belligerent 
vessels  in  British  ports  have  been  reimposed  in  subsequent 
wars.  The  United  States  adopted  them  in  1870  at  the  out- 
break of  the  conflict  between  France  and  Germany,2  and 
other  powers  have  copied  them  wholly  or  in  part.  In  fact 
they  have  become  so  common  that  they  are  sometimes  re- 
garded as  rules  of  International  Law.  This  is  especially  the 
case  with  regard  to  the  supply  of  coal.  It  is  often  said  that 
a neutral  state  is  bound  to  allow  belligerent  cruisers  to  take 
on  board  no  more  than  is  sufficient  to  carry  them  to  the  near- 
est port  of  their  own  country.  Such  an  obligation  is  un- 
known to  the  law  of  nations,  which  arms  neutrals  with 
authority  to  impose  what  restraint  they  deem  necessary,  but 
does  not  condemn  them  if  they  impose  none.  It  classifies 
coals,  not  with  arms  and  ammunition,  the  supply  of  which  is 
prohibited,  but  Avith  provisions  and  naval  stores,  the  supply 
of  which  is  alloAved.  It  is  a grave  question  whether  the  rule 
ought  not  to  be  changed.  In  modern  naval  warfare  speed  is 
becoming  more  and  more  important,  and  coal  is  as  much  a 
necessity  for  fighting  purposes  as  gunpowder.  The  presence 
or  absence  of  a full  supply  of  it  may  make  all  the  difference 
between  victory  or  defeat  in  a naval  engagement,  and  deter- 
mine whether  a cruiser  is  to  be  an  effective  commerce- 
destroyer  or  a useless  log.  There  is  good  reason,  therefore, 
for  making  it  into  a forbidden  commodity;  but  the  change 
must  be  effected  by  general  consent  or  universal  custom,  and 

1 British  State  Papers,  Report  of  the  Neutrality  Laws  Commissioners. 

pp.  77,  78. 

2 Wharton,  International  Law  of  the  United  States,  § 402. 


512 


THE  DUTIES  OF  BELLIGERENT  STATES 


meanwhile  nothing  is  gained  by  representing  limitations  of 
supply  due  to  the  will  of  the  neutral  as  restraints  imposed 
by  the  international  code.  Belligerents  are  bound  to  submit 
to  reasonable  regulations  in  this  as  in  other  matters,  and 
neutrals  are  bound  to  take  efficient  means  for  the  protection 
of  their  neutrality ; but  no  more  precise  obligations  have  as 
yet  been  laid  upon  them. 

In  modern  wars  the  armed  vessels  of  the  combatants  have 
not  been  allowed  to  bring  their  prizes  into  neutral  ports  ex- 
cept in  the  cases  covered  by  the  Right  of  Asylum.  Till 
recently,  free  entry  was  permitted,  and  prizes  were  sometimes 
adjudicated  upon,  and  even  sold,  while  lying  in  neutral 
waters,  when  it  was  not  safe  to  bring  them  into  a port  of  the 
captor’s  country.  These  practices  caused  much  discussion 
as  to  the  limits  of  the  jurisdiction  of  Prize  Courts,  and  were 
inconsistent  with  the  newer  and  stricter  views  of  state- 
neutrality.  The  transition  from  them  to  the  present  custom 
of  total  exclusion  is  seen  in  the  regulations  issued  by  the 
neutral  maritime  states  during  the  struggles  of  the  middle 
of  the  present  century,  especially  the  American  Civil  War. 
Some  powers  allowed  prizes  to  be  brought  in  by  belligerent 
cruisers,  but  prohibited  the  sale  of  them  in  their  ports  and 
waters  ; others  excluded  them  from  certain  ports  and  admitted 
them  into  the  rest;  while  a third  group  excluded  them  alto- 
gether.1 The  practice  of  total  exclusion  rests  upon  a wide 
basis  of  recent  custom,  and  is  not  likely  to  be  departed  from 
by  civilized  states ; but  at  present  it  can  hardly  be  regarded 
as  obligatory,  though  in  time  it  will  probably  become  so. 

In  land  warfare  belligerent  troops  are  excluded  from  neu- 
tral territory.  Instead  of  being  allowed,  like  sea  forces,  to 
come  and  go  freely  unless  the  government  of  the  neutral  state 
expressly  forbids  their  entry,  they  are  kept  out  altogether, 
not  by  the  mere  will  of  the  neutral  power,  but  by  the  common 
law  of  nations.  The  only  case  in  which  they  may  be  per- 

1 British  State  Papers,  Report  of  the  Neutrality  Laws  Commissioners , 
pp.  39-79. 


TOWARDS  NEUTRAL  STATES. 


513 


mitted  to  cross  neutral  borders  occurs  when  they  are  driven 
over  them  by  the  enemy.  Under  such  circumstances  human- 
ity forbids  that  they  should  be  driven  back  to  captivity  or 
death  by  lines  of  neutral  bayonets ; but  at  the  same  time 
impartiality  demands  that  they  shall  not  be  allowed  to  use 
the  territory  they  have  entered  as  a place  of  refuge,  in  which, 
safe  from  pursuit,  they  can  reorganize  their  shattered  forces, 
and  from  which  they  can  sally  forth  to  renew  the  conflict 
when  occasion  offers.  The  two  are  reconciled  by  the  practice 
of  disarming  them  as  soon  as  they  cross  the  frontier  and 
retaining  them  in  honorable  detention  till  the  conclusion 
of  the  war.  This  is  called  interning  and  the  troops  so  treated 
are  said  to  be  interned.  They  are  bound  to  submit  to  the 
process  and  to  make  no  attempt  to  compromise  the  neutrality 
of  the  state  in  which  they  find  asylum.  The  expenses  to 
which  it  is  put  in  consequence  of  their  presence  should  be 
repaid  by  their  own  government.  The  last  example  of  in- 
ternment occurred  in  1871,  when  eighty-five  thousand  ragged 
and  starving  French  troops,  the  wreck  of  Bourbaki’s  army, 
took  refuge  within  the  Swiss  frontier  from  the  pursuit  of 
Manteuffel  in  the  closing  days  of  the  Franco-German  War. 
They  received  permission  to  cross  it  by  special  convention 
between  their  commander,  General  Clinchant,  and  the  Swiss 
General  Herzog,  and  were  at  once  disarmed,  clothed  and  fed 
by  the  orders  of  the  central  government  of  the  Helvetic 
Republic.  At  the  conclusion  of  peace  they  returned  to 
France  under  an  agreement  between  the  two  countries  which 
provided  for  the  payment  by  the  latter  of  a lump  sum  to 
defray  the  costs  to  which  the  administration  and  citizens  of 
Switzerland  had  been  put  in  consequence  of  their  presence.1 

1 Fyffe,  Modern  Europe,  III.,  462  ; Annual  Register  for  1871,  pp.  160, 
161 ; Calvo,  Droit  International,  § 2336. 


514  THE  DUTIES  OF  BELLIGERENT  STATES 

§ 252. 

Every  belligerent  lays  under  a strong  obligation 

To  make  reparation  to  any  state  whose  neutrality  it  may  have 

violated. 

International  Law  contains  no  precise  rules  as  to  the  exact 
form  which  such  reparation  should  take.  It  certainly  re- 
quires the  restoration  of  property  illegally  captured,  when 
(u  To  make  ships  or  goods  have  been  seized  within  neutral 
state  whose  ne"y  jurisdiction ; but  it  does  not  go  further  and 

trality  it  may  have  ..  , , ..  . , . , . 

violated.  prescribe  the  scale  on  which  indemnities 

should  be  calculated,  or  the  wording  of  apologies,  or  the 
forms  to  be  used  in  paying  ceremonial  honors  to  the 
flag  of  the  injured  state.  These  details  are  left  to  be  settled 
by  negotiation  at  the  time ; and  all  we  are  able  to  say  about 
the  matter  is  that  the  reparation  should  be  adequate  and 
proportioned  to  the  gravity  of  the  offence.  In  all  cases  it 
must  be  made  to  the  injured  neutral,  whose  duty  it  is  to 
deal  with  the  other  belligerent  if  loss  has  fallen  upon  him  in 
consequence  of  the  violence  complained  of.  For  instance, 
when  the  commander  of  a ship  of  war  seizes  a vessel  belong- 
ing to  his  enemy  in  neutral  waters,  the  neutral  government 
demands  from  the  country  of  the  offender  the  surrender  of 
the  prize,  or  takes  possession  of  it  if  it  is  within  the  juris- 
diction, and,  having  obtained  control  of  it,  restores  it  to  the 
original  belligerent  owner,  either  by  administrative  act  or 
through  the  machinery  of  a Prize  Court.  If  the  neutral 
state  is  unable  or  unwilling  to  obtain  satisfaction  from  the 
offending  belligerent,  serious  complications  are  likely  to 
follow.  It  exposes  itself  to  the  risk  of  similar  outrages 
from  the  injured  side.  Claims  for  indemnity  may  be  made 
against  it,  and  it  may  even  be  threatened  with  war. 

Violations  of  neutrality  by  a belligerent  may  take  as  many 
forms  as  the  duties  they  contravene.  Like  other  offences 


TOWARDS  NEUTRAL  STATES. 


515 


they  may  be  gross  or  slight,  committed  in  heedlessness  and 
hot  blood  or  carefully  planned  and  executed  according  to  a 
predetermined  method.  They  are  generally  the  unauthorized 
acts  of  over-zealous  or  unscrupulous  subordinates.  The  ap- 
propriate reparation  varies  from  a formal  apology  to  a serious 
humiliation.  In  important  cases  the  matter  is  brought  by 
diplomatic  complaint  before  the  government  of  the  offending 
state;  and  it  is  expected  to  undo  the  wrong  as  far  as  possible, 
punish  the  perpetrators,  and  give  whatever  satisfaction  is 
deemed  just  and  proper.  A good  example  of  executive 
action  is  afforded  by  the  case  of  the  Florida,  one  of  the  Con- 
federate cruisers  in  the  American  Civil  War.  In  October, 
1864,  she  was  seized  in  the  neutral  Brazilian  port  of  Bahia 
by  the  Federal  steamer  Wachusett  and  brought  as  a prize  to 
the  United  States.  Brazil  at  once  demanded  reparation,  and 
the  government  of  Washington  disavowed  the  act.  Full 
satisfaction  was  offered  by  Mr.  Seward,  then  Secretary  of 
State.  The  commander  of  the  Wachusett  was  tried  by  court- 
martial;  the  United  States  consul  at  Bahia,  who  had  advised 
the  attack,  was  dismissed;  the  Brazilian  flag  was  saluted  on 
the  spot  where  the  capture  took  place ; and  the  crew  of  the 
captured  vessel  were  set  at  liberty.  The  Florida  herself, 
ought,  it  was  admitted,  to  have  been  delivered  over  to  the 
Brazilian  authorities ; but  sbc  was  run  into  and  sunk  in 
Hampton  Roads  by  a Federal  transport,  and  it  was  therefore 
impossible  to  restore  her.1 

It  is  sometimes  held  that  states  engaged  in  hostilities 
possess  a right  to  make  use  of  and  even  destroy  vessels 
and  other  property  belonging  to  neutral  individuals  and 
found  within  the  limits  of  belligerent  authority,  if  the  exi- 
gencies of  warfare  render  such  use  or  destruction  a matter  of 
great  and  pressing  importance.  This  real  or  supposed  right 
is  called  Droit  d' Angarie  or  Angaria , which  has  been  angli- 
cized into  Angary.  Another  name  for  it  is  Prestation. 

1 Wharton,  International  Law  of  the  United  States,  §§  27,  399  ; Wheaton, 
International  Law  (Dana’s  ed.),  note  209. 


516 


THE  DUTIES  OF  BELLIGERENT  STATES 


Undoubtedly  the  property  of  neutrals  permanently  situated 
in  belligerent  territory  must  share  the  risks  of  war.  But 
when  the  right  to  deal  with  it  is  extended  to  cover  the  seizure 
of  neutral  vessels  trading  in  belligerent  ports  and  their  use 
as  transports  for  an  expedition  against  the  enemy,  we  may 
well  hesitate  to  accept  a doctrine  so  inconsistent  with  ac- 
knowledged principles.  Nothing  but  long  and  uninterrupted 
usage  can  justify  a practice  which  runs  counter  to  the  rudi- 
mentary principle  that  a belligerent  must  make  war  with  his 
own  resources.  If  he  can  seize  neutral  ships,  there  seems  no 
reason  why  he  may  not  also  seize  neutral  specie,  neutral 
arms  and  even  neutral  subjects.  If  the  methods  of  a bandit 
are  forbidden  in  some  matters,  why  not  in  all?  Unfortu- 
nately there  can  be  no  doubt  that  the  practice  of  states,  even 
in  modern  times,  has  permitted  such  seizures  as  we  are  dis- 
cussing. In  most  cases  payment  has  been  made  for  the 
service  rendered,  and  there  are  in  existence  treaties  which 
provide  for  compensation.  Hall  discusses  the  matter  fully, 
but  cautiously  refrains  from  expressing  a decided  opinion 
upon  it.1  He  cites  a number  of  continental  writers  and 
refers  to  several  cases,  the  general  result  of  which  is  to 
justify  seizure  under  stress  of  extreme  necessity.  Phillimore 
declares  that  it  can  be  excused  by  nothing  short  of  an  emer- 
gency “which  would  compel  an  individual  to  seize  his 
neighbor’s  horse  or  weapon  to  defend  his  own  life.”2  Most 
of  the  jurists  who  have  dealt  with  the  subject  do  not  dis- 
tinguish between  acts  which,  though  contrary  to  law,  are 
condoned  on  the  plea  of  necessity,  and  acts  which  may  be 
lawfully  done  under  certain  conditions  and  in  certain  cir- 
cumstances. Angary  belongs  to  the  former  class.  In  the 
words  of  Dana,  “ it  is  not  a right  at  all,  but  an  act  resorted  to 
from  necessity,  for  which  apology  and  compensation  must 
be  made,  at  the  peril  of  war.”3  The  last  instance  of  it  bears 
out  this  view.  In  1870  the  Germans  sank  six  English 

1 International  Law , § 278.  2 International  Law,  III.,  § XXIX. 

3 Note  152  to  Wheaton’s  International  Law . 


TOWARDS  NEUTRAL  STATES. 


517 


merchant  vessels  in  the  Seine  at  Duclair  to  stop  the  advance 
up  the  river  of  some  French  gunboats.  Compensation  was 
demanded  and  given,  and  the  act  was  excused  on  the  ground 
that  the  danger  was  pressing  and  could  not  be  met  in  any 
other  way.1  Angary  is  no  exception  to  the  rule  that  the 
belligerent  is  bound  to  make  reparation  to  the  neutral  for 
any  violation  of  neutral  rights  of  which  he  may  have  been 
guilty. 


1 Annual  Register  for  1870 , p.  110. 


CHAPTER  III. 


THE  DUTIES  OF  NEUTRAL  STATES  TOWARDS  BELLIGERENT 

STATES. 

§ 253. 

The  rules  which  prescribe  the  duties  of  neutral  states  in 
their  dealings  with  belligerent  members  of  the  family  of 
nations  are  of  two  kinds.  Some  of  them  are 
aimed  assistance  perfectly  clear.  They  order  definite  acts  and 

to  either  belliger-  . . , . , , P Tin 

ent  or  allow  to  omissions  and  point  to  a course  oi  conduct  well 

one  side  privileges 

denied  to  the  known  to  be  binding  on  the  parties  concerned. 

Others  are  indefinite  and  uncertain.  Opinions 
and  practices  are  divergent  as  to  the  matters  with  which  they 
deal,  and  it  is  impossible  to  say  that  the  actions  of  states 
with  regard  to  them  can  be  forecast  with  any  degree  of 
confidence.  In  the  statements  and  discussions  which  follow 
we  will  endeavor  to  distinguish  carefully  between  what  is 
matter  of  undoubted  obligation  and  what  rests  only  upon 
disputed  views  of  justice  and  expediency. 

One  of  the  most  universally  recognized  duties  of  neutral 
states  is 

Not  to  give  armed  assistance  to  either  belligerent  or  allow  to 
one  side  privileges  denied  to  the  other. 

This  is  involved  in  the  very  idea  of  neutrality.  We  have 
already  traced  the  steps  whereby  a recognition  of  the  fact 
that  under  ordinary  circumstances  a neutral  cannot  assist 
either  belligerent  with  troops  or  ships  became  general  among 

618 


THE  DUTIES  OF  NEUTRAL  STATES,  ETC. 


519 


civilized  states  ; and  we  have  seen  how  the  only  question 
seriously  debated  in  this  connection  for  more  than  a century 
was  whether  limited  succors  might  he  given  in  pursuance  of 
an  antecedent  engagement.1  There  is  a great  preponderance 
of  modern  opinion  against  such  aid,  which  is  obviously 
inconsistent  with  the  duty  of  absolute  impartiality  in  the 
treatment  accorded  to  each  of  the  parties  to  the  struggle. 
For  the  last  hundred  years  practice  has  squared  with  prin- 
ciple. Not  only  has  there  been  no  instance  of  the  grantyby 
a belligerent  to  a neutral')  of  naval  or  military  contingents 
under  the  provisions  of  a treaty  made  before  the  war,  but 
even  covenants  to  give  far  less  marked  assistance  have  been 
steadily  discountenanced  and  are  now  unknown.  Thus  some 
of  the  provisions  of  the  treaty  of  1778  between  the  United 
States  and  France  were  a source  of  great  embarrassment  to 
Washington  and  his  Cabinet  when  England  and  France  went 
to  war  in  1798.  The  seventeenth  and  twenty-second  articles 
gave  to  French  ships  of  war  and  privateers  the  exclusive 
privilege  of  bringing  their  prizes  into  American  ports;  and 
provided  that  privateers  of  any  nation  at  war  with  France 
should  be  forbidden  to  fit  themselves  therein,  or  sell  their 
prizes  or  other  merchandise,  or  buy  more  provisions  than 
were  necessary  to  enable  them  to  reach  the  nearest  port  of 
their  own  country,  whereas  the  privateers  of  France  were 
free  to  do  all  these  things.2  Great  Britain  complained  of  the 
advantages  accorded  to  her  enemy  ; and  Washington’s  efforts 
to  preserve  a strict  and  self-respecting  neutrality  were  seri- 
ously hampered  by  treaty  obligations  from  which  he  could 
not  escape.  Negotiations  were  entered  into  with  France  on 
this  and  other  matters.  They  were  exceedingly  complicated, 
and  led  at  first  to  a rupture.  But  in  1800  they  were  brought 
to  a successful  termination  by  a convention  which  did  not 
re-enact  the  objectionable  stipulations  of  the  treaty  of  1778.3 

1 See  §§  244,  245.  2 Treaties  of  the  United  States,  pp.  301-303. 

8 Treaties  of  the  United  States,  pp.  322-331 ; Wharton,  International  Law 
of  the  United  States,  §§  148  a,  399. 


520 


THE  DUTIES  OF  NEUTRAL  STATES 


The  United  States  were  thenceforth  free  to  hold  the  balance 
even  between  warring  powers  , and  it  has  been  the  policy  of 
other  nations  to  obtain  for  themselves  a similar  liberty.  At 
the  present  time  a neutrality  conducted  on  other  principles 
would  not  be  tolerated. 


§ 254. 

We  will  consider  next  the  duty  incumbent  on  neutral  states 

Not  to  supply  belligerents  with  money  or  instruments  of 

warfare. 

By  supplying  belligerents  with  money  or  arms  or  stores 
neutral  states  would  help  them  almost  as  much  as  if  they  had 
(2)  Not  to  supply  sent  military  or  naval  contingents.  The  reasons 
mon ey^or ta stru-  which  justify  the  prohibition  of  the  latter  apply 
ments  of  warfare.  eqUa]]y  the  former.  Neutral  governments 

may  neither  give  nor  lend  money  to  a belligerent  government, 
and  the  gift  or  sale  of  arms,  ships  and  other  instruments  of 
warfare  is  forbidden  to  them.  Trading  is  not  one  of  the 
ordinary  functions  of  a national  administration.  A state 
contravenes  its  neutrality  when  it  goes  out  of  its  way  to 
make  bargains  with  the  agents  of  foreign  and  belligerent 
powers,  for  the  purpose  of  transferring  to  them  by  a commer- 
cial transaction  weapons  which  are  certain  to  be  used  against 
the  forces  of  a friend.  A gratuitous  transfer  is  still  more 
reprehensible.  It  would  be  justly  regarded  as  inconsistent 
with  the  condition  of  neutrality.  But  it  may  be  doubted 
whether  a government  is  bound  to  stop  the  periodical  sales 
of  old  arms  and  stores  from  its  arsenals,  even  though  it  has 
good  reason  to  believe  that  agents  from  its  belligerent  neigh- 
bors will  attend  and  buy.  The  more  excellent  way  is  to 
refrain  from  such  transactions,  especially  when  they  are  con- 
cerned with  ships.  When  in  1863  the  British  Government 
discovered  that  owing  to  the  sale  of  an  old  and  unserviceable 
gunboat,  called  the  Victor , to  a private  firm,  it  had  found  its 


TOWARDS  BELLIGERENT  STATES. 


521 


way  into  the  hands  of  Confederate  agents,  orders  were  given 
that  no  more  ships  of  the  royal  navy  should  be  sold  till  the 
war  was  over.1  A case  on  the  other  side  occurred  in  the 
United  States  in  1870.  Congress  had  passed  an  act  two  years 
before,  authorizing  the  Secretary  of  War  to  sell  such  arms 
and  stores  as  were  unsuitable  for  use.  Sales  had  commenced 
when  the  war  between  France  and  Germany  broke  out ; and 
the  administration  saw  no  reason  to  discontinue  them  in 
consequence.  Agents  of  the  French  Government  made  large 
purchases,  which  were  paid  for  through  a French  Consul. 
From  September  to  December,  1870,  as  many  as  55  cannon 
and  378,000  muskets  were  exported  from  New  York  to 
France.  In  the  following  year  the  Senate  of  the  United 
States  appointed  a committee  to  investigate  the  subject. 
Their  report  justified  the  action  of  the  executive,  on  the 
ground  that  the  sales  were  but  the  continuation  of  a series 
which  had  begun  before  the  commencement  of  the  war,  and 
that,  instead  of  any  preference  being  given  to  the  belligerents, 
persons  suspected  of  being  their  agents  were  denied  oppor- 
tunity to  purchase.  It  declared  that  the  government  did 
not  know  at  the  time  of  sale  that  those  who  bought  were 
acting  on  behalf  of  France,  but  added  that  even  if  the  head 
of  the  French  state  had  appeared  in  person  as  a buyer  it 
would  have  been  lawful  to  sell  to  him  in  pursuance  of  a 
national  policy  adopted  prior  to  the  commencement  of  hos- 
tilities.2 The  case  seems  to  have  come  very  near  the  border 
between  the  permitted  and  the  forbidden.  It  is  possible  to 
hold  that  as  a matter  of  strict  law  the  American  Government 
Avas  not  absolutely  bound  to  discontinue  its  sales,  and  yet  to 
regret  that  a wider  interpretation  was  not  placed  upon  the 
undoubted  obligation  of  giving  no  assistance  to  either  party 
in  the  contest. 

There  can  be  no  doubt  that  the  gift  or  loan  of  money 
from  a neutral  government  to  a belligerent  government  is  a 

1 British  State  Papers,  North  America,  No.  2 (1873),  pp.  104,  105. 

2 Wharton,  International  Law  of  the  United  States,  § 391. 


522 


THE  DUTIES  OF  NEUTRAL  STATES 


grave  offence,  and  the  same  may  be  said  of  the  guarantee 
by  a neutral  power  of  a loan  issued  by  its  belligerent  friend. 
The  conduct  of  the  American  envoys  at  Paris  in  1798,  when 
they  refused  on  behalf  of  their  government  to  consider  the 
application  of  the  Directory  for  a loan  to  France,  then  at 
war  with  Great  Britain,  was  in  strict  accordance  with  Inter- 
national Law.1  All  the  writers  who  touch  upon  the  subject 
are  agreed  that  it  is  a violation  of  neutrality  for  a state 
which  is  not  a party  to  a war  to  lend  money  to  one  which  is. 
The  uncontroverted  opinion  of  modern  publicists,  backed  by 
the  general  custom  of  civilized  states,  constitutes  a mass 
of  authority  from  which  there  is  no  appeal.  But,  owing 
largely  to  neglect  of  the  fundamental  distinction  between 
neutral  governments  and  neutral  subjects,  a group  of  jurists 
of  good  repute  extend  the  rule  far  beyond  the  practice  on 
which  it  depends.  Either  they  declare  in  so  many  words 
that  neutral  individuals  may  not  lend  money  to  belligerent 
states,  or  they  use  ambiguous  phraseology  which  seems  to 
include  private  persons  within  the  scope  of  its  prohibitions.2 
Never  was  a more  unfounded  doctrine  set  forth  by  able  and 
learned  men.  Money  is  a form  of  merchandise,  and  neutral 
individuals  constantly  trade  in  it  with  belligerent  govern- 
ments. It  can  be  transferred  with  the  greatest  ease,  far 
more  easily,  in  fact,  than  other  commodities.  Commercial 
transactions  in  it  could  not  be  prevented,  except  by  an 
amount  of  espionage  and  interference  which  would  outrage 
human  nature  and  render  all  trade  impossible.  No  war  of  any 
magnitude  takes  place  without  a free  resort  by  the  comba- 
tant powers  to  neutral  money  markets.  The  stock  in  loans 
Issued  to  provide  funds  for  the  conflict  is  bought  and.  sold 
in  other  countries,  just  as  freely  as  shares  in  foreign  mines 

1 Wharton,  International  Law  of  the  United  States,  §§  148  a,  390. 

2 e.g.  Bluntsclili,  Droit  International  Codifie , § 768  ; Calvo,  Droit  Interna- 
tional, § 2331  ; Halleck,  International  Law,  Ch.  XXIV.,  § 15  ; Phillimore, 
International  Law,  III.,  § CLI.  ; Kent,  Commentary  on  International  Law, 
(Abdy’s  ed.),  Ch.  VIII. 


523 


TOWARDS  BELLIGERENT  STATES. 

and  railways.  At  the  present  moment  (August,  1894)  the 
belligerent  governments  of  China  and  Japan  are  besieged 
by  offers  of  money  from  groups  of  European  investors. 
When  practice  points  entirely  in  one  direction  it  is  idle  to 
pit  against  it  a so-called  rule  based  on  nothing  better  than 
the  statement  that  gold  is  a prime  necessity  in  war.  It  cer- 
tainly is  ; and  nearly  all  agree  that  a belligerent  may  lawfully 
confiscate  any  supplies  of  it  he  may  find  in  a neutral  vessel 
on  its  way  to  his  enemy.  Money  is  contraband  of  war,  and 
must  be  treated  like  other  articles  in  the  same  category.1 
The  neutral  trader  in  it  lends  at  his  own  risk,  but  he  com- 
mits no  breach  of  the  common  law  of  nations  by  lending, 
and  his  government  is  under  no  obligation  to  attempt  the 
impossible  task  of  preventing  him.  When  in  1823,  the 
British  Cabinet  consulted  its  law  officers  as  to  the  legality 
of  subscriptions  and  loans  “ for  the  use  of  one  of  two  bellig- 
erent states  by  individual  subjects  of  a nation  professing 
and  maintaining  a strict  neutrality  between  them,”  it  re- 
ceived in  reply  an  opinion  to  the  effect  that  voluntary  sub- 
scriptions of  the  nature  alluded  to  were  inconsistent  with 
neutrality  and  contrary  to  the  law  of  nations.  But  with 
respect  to  loans  the  distinguished  lawyers  consulted,  among 
whom  was  Copley,  afterwards  Lord  Lyndhurst,  declared  that 
“ according  to  the  opinion  of  writers  on  the  law  of  nations 
and  the  practice  which  has  prevailed,  they  would  not  be  an 
infringement  of  neutrality.”  The  documents  in  which  these 
views  are  embodied  are  printed  at  length  by  Sir  Sherston 
Baker  in  a note  to  his  edition  of  Halleck  ; 2 but  they  cer- 
tainly give  no  support  to  the  opinions  expressed  in  the  text 
of  the  book  against  the  legality  of  commercial  transactions 
in  money  between  neutral  individuals  and  belligerent  gov- 
ernments. Even  in  deciding,  and  rightly  deciding,  that  vol- 
untary gifts  and  subscriptions  were  illegal,  the  British  law 
officers  took  care  to  add  that  the  belligerent  against  whom 
they  were  directed  would  not  have  the  right  to  consider 
1 See  §§  277-279.  2 International  Law , II. , 195-197. 


524  - THE  DUTIES  OF  NEUTRAL  STATES 

them  as  constituting  an  act  of  hostility  on  the  part  of  the 
neutral  government.  Moreover,  they  abstained  from  recom- 
mending a prosecution  of  the  subscribers  on  the  ground  that 
it  would  be  almost  certain  to  fail.  There  has  never  been 
any  question  among  competent  authorities  of  instituting 
legal  proceedings  against  neutral  subjects  concerned  in  float- 
ing loans  for  belligerents  or  taking  stock  therein.  The 
utmost  extension  of  the  obligations  of  neutral  states  in  this 
matter  can  make  them  go  no  further  than  the  prohibition 
of  any  assistance  direct  or  indirect  on  the  part  of  their 
executive  officers.  This  applies  to  sales  of  arms,  stores  and 
instruments  of  warfare,  as  well  as  to  loans  of  money.  In 
1885  Mr.  Bayard,  then  Secretary  of  State  at  Washington, 
instructed  the  American  Consul-General  at  Shanghai  to 
withhold  consular  intervention,  where  it  was  necessary  in 
order  to  effect  a valid  transfer  of  American-owned  steamers 
to  the  Chinese  Government  for  use  against  France  in  the 
hostilities  then  raging  between  the  two  countries.1  Nothing 
more  could  be  required  by  the  most  exacting  belligerent. 
A neutral  administration  which  refrains  from  such  trans- 
actions itself,  and  refuses  official  aid  and  countenance  to 
any  of  its  subjects  who  take  part  in  them,  has  fulfilled 
its  entire  duty. 

«-  • 

§ 255. 

A curious  instance  of  the  growth  of  opinion  in  matters  of 
international  concern  is  afforded  by  the  obligation  of  neutral 
states 

Not  to  allow  belligerents  to  send  troops  through  their  territory 
or  levy  soldiers  therein. 

It  is  now  acknowledged  almost  universally  that  a neutral 
state  which  permits  the  passage  of  any  part  of  a belligerent 


1 Wharton,  International  Law  of  the  United  States , § 393. 


TOWARDS  BELLIGERENT  STATES. 


525 


army  through  its  territory  is  acting  in  such  a partial  manner 
as  to  draw  down  upon  itself  just  reprobation,  and  with 
regard  to  permission  to  recruit  a still  stronger  Not  to  allow 
feeling  exists.  Yet  Grotius  laid  down  that  a *^®£“** t0 
right  of  passage  existed  and  might  be  taken  territory ^r'wy 
by  force  if  denied  without  just  cause,1  and  soldiers  therein. 
Vattel  declared  that  it  was  no  breach  of  neutrality  to 
permit  levies  of  troops  in  favor  of  a belligerent,  if  they 
did  not  form  his  principal  strength.2  The  Swiss  publicist 
discussed  also  the  question  of  a right  of  passage.  He  rea- 
soned about  it  at  great  length,  and  came  to  the  conclusion 
that  the  belligerent  should  always  ask  it  of  the  neutral  and 
never  presume  to  take  it  by  force,  except  under  stress  of 
extreme  necessity  or  when  the  refusal  was  on  the  face  of  it 
unjust.  In  all  other  cases  the  denial  of  the  neutral  state 
must  be  conclusive;  but  if  it  gave  the  required  permission  it 
was  guilty  of  no  offence,  provided  that  it  was  ready  to  grant 
a similar  passage  to  the  opposing  troops  at  the  request  of 
their  government.3  This  doctrine  is  still  to  be  found  in  the 
works  of  writers  of  repute.  Wheaton,  for  instance,  admits  . 
a right  of  passage,  but  calls  it  an  imperfect  right,  by  which 
he  means  that  it  cannot  be  enforced  against  the  will  of  the 
neutral,4  and  Manning  declares  that  it  may  be  granted  with- 
out an  infraction  of  neutrality  as  long  as  it  is  given  impar- 
tially to  both  sides.5  But,  as  Hall  points  out,  the  more 
recent  writers  express  a contrary  opinion,6  and  there  can  be 
little  doubt  that  they  are  right.  Such  a grant  of  passage  is 
in  its  own  nature  incapable  of  impartial  distribution,  how- 
ever blameless  may  be  the  intentions  of  the  neutral  who 
grants  it.  In  the  crisis  of  a great  war  it  may  be  a matter  of 
life  and  death  to  one  belligerent  to  pass  a body  of  troops 

1 Be  Jure  Belli  ac  Pads,  Bk.  II.,  II.,  XIII.,  and  Bk.  III.,  XVII.,  II. 

2 Droit  des  Gens,  III.,  § 110.  * Ibid.,  III.,  §§  119-134. 

4 International  Law,  § 427. 

5 Law  of  Nations  (Amos’s  ed.),  Bk.  V.,  Ch.  II. 

6 International  Law , § 219. 


526 


THE  DUTIES  OF  NEUTRAL  STATES 


across  an  outlying  portion  of  neutral  territory,  whereas  the 
other  may  never  be  placed  in  a similar  position  through  the 
whole  course  of  hostilities.  It  would  be  little  consolation 
to  him  in  the  midst  of  defeat  and  ruin  to  be  told  that  he 
would  have  received  the  same  privileges  as  his  adversary, 
had  the  conditions  been  reversed.  Moreover,  the  permission 
is  of  necessity  given  to  further  a warlike  end,  and  is  there- 
fore inconsistent  with  the  fundamental  principle  of  state- 
neutrality.  These  considerations  have  influenced  practice 
during  the  present  century,  and  the  weight  of  modern  prece- 
dent is  against  the  grant  of  passage  in  any  case.  In  1815 
permission  was  extorted  from  the  unwilling  Swiss  for  the 
passage  of  Austrian  troops  through  the  territory  of  the  Con- 
federation on  their  way  to  invade  Southeastern  France.1 
But  in  1870  the  government  of  the  Republic  would  not 
allow  bodies  of  Alsatian  recruits  for  the  French  army  to 
cross  her  frontiers.  In  the  same  war  Belgium  declined  to 
give  permission  to  the  Germans  to  send  their  wounded  home 
over  her  railways,  on  the  ground  that  to  relieve  the  conges- 
tion of  their  lines  of  communication  with  their  own  country 
would  enable  them  to  bring  up  troops  and  stores  more  easily 
for  the  reinforcement  and  support  of  the  armies  invading 
France.2  There  was  some  controversy  at  the  time  as  to 
whether  this  was  not  an  undue  and  over-scrupulous  exten- 
sion of  neutral  duties.  France,  however,  declared  that  she 
would  regard  the  passage  of  German  wounded  over  Belgian 
territory  as  a breach  of  neutrality;  but  in  1874  her  represen- 
tative at  the  Brussels  Conference  was  able  to  assent  to  the 
guarded  doctrine  contained  in  the  Military  Code  then 
drawn  up.  Article  55  declared  that  “ the  neutral  state  may 
authorize  the  transport  across  its  territory  of  the  wounded 
and  sick  belonging  to  the  belligerent  armies,  provided  that 
the  trains  which  convey  them  do  not  carry  either  the  per- 

1 Wheaton,  International  Law , §§  418,  419. 

2 Rolin-Jacquemyns,  La  Guerre  Actuelle  in  the  Revue  de  Droit  Interna- 
tional-, Vol.  II.,  pp.  708,  709. 


TOWARDS  BELLIGERENT  STATES. 


527 


sonnel  or  the  materiel  of  war.”1  In  1877  the  United  States 
strongly  remonstrated  with  the  Government  of  Mexico  on 
account  of  the  violation  of  the  Texan  frontier  by  a body  of 
troops  who  pursued  some  flying  insurgents  on  to  American 
soil,  and  there  attacked  and  dispersed  them.2  The  only  in- 
stance of  permission  in  recent  times  is  afforded  by  Roumania 
at  the  commencement  of  the  Russo-Turkish  war  of  1877. 
Just  before  the  outbreak  of  hostilities  the  Russian  and 
Roumanian  Governments  negotiated  a convention  by  which 
the  former  agreed  to  give  the  troops  of  the  latter  free  passage 
through  its  territory  on  their  march  to  the  Danube  for  the 
purpose  of  invading  European  Turkey.3  They  were  to  have 
the  use  of  all  railways,  roads  and  telegraphs,  but  were  not 
to  pass  through  Bucharest,  the  Roumanian  capital,  nor  to 
interfere  with  the  internal  affairs  of  the  state.  The  Rus- 
sian commanders  were  responsible  for  the  good  order  of  their 
soldiers,  and  were  to  pay  for  all  supplies  they  took  from  the 
country.  In  pursuance  of  this  agreement  at  least  half  a 
million  Russian  troops  passed  through  Roumania  during  the 
war,  and  crossed  the  Danube  into  Bulgaria.  The  case  looks 
at  first  sight  like  an  important  reversion  to  the  old  practice  ; 
but  on  closer  examination  it  proves  to  be  an  utterly  anoma- 
lous proceeding  which  cannot  be  drawn  into  precedent  on 
one  side  or  the  other.  The  only  purpose  it  serves  is  to  illus- 
trate afresh  that  strange  divorce  between  diplomatic  theory 
and  concrete  fact  which  is  a prominent  feature  of  the  com- 
plicated group  of  problems  called  by  Europe  the  Eastern 
Question.  Technically  Roumania  was  a part  of  the  Turkish 
Empire,  and  therefore  the  entry  of  Russian  troops  into  Rou- 
manian territory  was  in  law  an  invasion  of  Turkey.  In 
reality  Roumania  was  a self-governing  state,  whose  nominal 
subjection  to  Turkish  suzerainty  scarcely  concealed  its  prac- 
tical independence.  It  recognized  in  the  Russian  attack  on 

1 British  State  Papers,  Miscellaneous , No.  1 (1875),  p.  324. 

2 Wharton,  International  Law  of  the  United  States,  § 397. 

3 Fyffe,  Modern  Europe , TII.,  497. 


528 


THE  DUTIES  OF  NEUTRAL  STATES 


Turkey  an  opportunity  for  severing  the  scanty  ties  that  still 
bound  it  to  the  Sultan ; and  therefore  it  aided  Russia,  first  by 
allowing  the  passage  of  the  invading  troops,  and  soon  after- 
wards ~by  joining  in  the  war  with  its  whole  army.  No  valid 
argument  can  be  drawn  from  the  occurrence  in  opposition  to 
the  modern  doctrine  that  a neutral  state  is  bound  to  close 
its  frontiers  against  the  armies  of  both  belligerents. 

In  discussing  the  obligation  of  the  belligerent  to  submit 
to  the  interning  of  its  soldiers  should  they  be  driven  into 
neutral  territory,1  we  have  already  seen  that  it  is  the  duty 
of  the  neutral  to  intern  them.  The  Brussels  Conference  of 
1874  laid  down  with  precision  the  course  he  is  bound  to 
adopt.2  He  ought  not  to  refuse  an  asylum  to  beaten  troops; 
but  the  plainest  principles  of  neutrality  forbid  him  to  allow 
them  to  retain  their  arms,  or  go  forth  when  the  danger  is 
past  and  take  a fresh  part  in  the  war.  They  are  not  likely 
to  bring  prisoners  with  them;  but  victorious  naval  forces 
sometimes  put  into  neutral  ports  with  the  crews  of  captured 
vessels  detained  in  custody  on  board.  Whatever  may  be  the 
circumstances  under  which  prisoners  of  war  are  brought  into 
the  territorial  waters  of  neutral  states,  the  authorities  of  the 
port  have  no  right  to  interpose  on  their  behalf  as  long  as 
they  remain  in  the  ship  of  their  captors.  Their  detention 
is  part  of  the  internal  economy  of  the  vessel,  which  is  regu- 
lated by  the  laws  of  the  state  to  which  it  belongs.  But  if 
they  escape,  the  local  sovereign  must  not  permit  their  recap- 
ture within  his  jurisdiction  by  agents  of  the  belligerent,  still 
less  can  he  arrest  and  return  them  by  means  of  his  own 
officers  without  forfeiting  all  claim  to  be  considered  as  neu- 
tral in  the  contest. 

The  question  of  levying  troops  is  simple.  In  the  seven- 
teenth century  it  was  thought  no  infraction  of  neutrality 
for  permission  to  recruit  to  be  given  bjr  a state  to  one  or 
more  of  its  neighbors  who  were  engaged  in  war.  In  the 

1 See  § 251. 

2 British  State  Papers,  Miscellaneous , No.  1 (1875),  p.  324. 


TOWARDS  BELLIGERENT  STATES. 


529 


eighteenth  century  a good  deal  of  doubt  was  felt  on  the  sub- 
ject. Yattel,  whose  views  have  been  already  alluded  to,  held 
that  a neutral  state  might  lawfully  permit  such  levies  if  it 
was  part  of  its  settled  policy  to  do  so,  and  that  the  belliger- 
ent who  suffered  had  no  right  to  complain,  even  Avhen  denied 
a similar  privilege,  unless  the  troops  so  obtained  formed  the 
principal  strength  of  its  enemy,  and  were  raised  for  the  in- 
vasion of  his  territories  or  the  defence  of  a manifestly  unjust 
cause.1  These  opinions  of  the  great  Swiss  writer  were 
probably  tinged  by  sympathy  with  his  compatriots,  who 
made  a practice  of  supplying  other  powers  with  troops.  The 
quickened  sense  of  neutral  obligations  which  arose  about  the 
end  of  the  century  led  to  a far  less  lenient  view.  Publicists 
declared  levies  of  troops  in  the  territory  of  other  states  to  be 
forbidden  to  a belligerent,  and  held  that  a neutral  govern- 
ment which  permitted  them  was  guilty  of  a gross  breach  of 
International  Law.  For  a time  Switzerland  remained  the 
only  state  which  sent  contingents  to  foreign  armies.  She 
was  in  the  habit  of  concluding  treaties  called  capitulations, 
whereby  she  covenanted  to  supply  other  powers  with  a fixed 
number  of  troops.  A mutiny  of  Swiss  soldiers  in  the 
Neapolitan  service  and  various  other  occurrences  forced  the 
question  of  these  capitulations  to  the  front  in  1859.  Great 
Britain  and  other  powers  made  representations  on  the  sub- 
ject, and  induced  the  government  of  the  Confederation  to 
pass  a law  forbidding  its  citizens  to  take  service  in  foreign 
armies,  and  making  it  an  offence  for  foreigners  to  enroll 
Swiss  contingents.2  This  put  a stop  to  proceedings  incon- 
sistent with  the  position  of  Switzerland  as  a neutralized  state 
and  contrary  to  modern  ideas  of  international  duty.  There 
is  little  prospect  of  any  revival  of  such  practices  among 
civilized  nations. 

1 Droit  des  Gens,  III.,  § 110. 

2 Manning,  Law  of  Nations,  Bk.  V.,  Ch.  I ; Halleck,  International  Law 
(Baker’s  ed.),  II.,  60,  note  1 ; Bury,  La  Neutrality  de  la  Suisse  in  the  Revue 
de  Droit  International , Yol.  II.,  pp.  636-642. 


530 


THE  DUTIES  OE  NEUTRAL  STATES 


§ 256. 

Neutral  states  are  bound  to  impose  other  restraints  than 
those  we  have  just  considered.  It  is  their  duty 


Not  to  permit  belligerent  agents  or  their  own  subjects  to  fit  out 
warlike  expeditions  within  their  dominions , or  increase  therein 
the  warlike  force  of  any  belligerent  ship  or  expedition. 


(4)  Not  to  suffer 
belligerent  agents 
or  their  own  sub- 
jects to  fit  out 
armed  expeditions 
within  their 
dominions,  or 
increase  therein 
the  warlike  force 
of  any  belligerent 
ship  or  expedi- 
tion. 


In  discussing  the  obligations  of  a belligerent  towards  neu- 
tral governments  we  endeavored  to  determine  with  as  near 
an  approach  to  precision  as  the  infinitely  varia- 
ble circumstances  of  warfare  will  permit,  what 
constitutes  an  armed  expedition.1  It  is  not 
necessary  to  repeat  now  what  was  said  then. 
Assuming  it  to  be  borne  in  mind,  we  go  on  to 
state  that  just  as  powers  at  war  are  bound  to 
refrain  from  fitting  out  such  expeditions  in  the 
territory  and  territorial  waters  of  powers  that  remain  at 
peace,  so  the  latter  are  bound  to  take  active  measures  to  pre- 
vent the  issue  from  any  part  of  their  dominions  of  naval  or 
military  forces  organized  therein  for  the  purpose  of  fighting 
against  one  belligerent  in  the  interests  of  the  other.  They 
owe  it  as  a duty  to  themselves  and  to  the  whole  family  of 
nations  to  keep  their  neutral  rights  inviolate,  whether  force 
or  fraud  be  the  weapon  used  against  them.  Moreover,  the 
belligerent  who  suffers  from  any  remissness  in  this  respect 
would  have  just  ground  of  complaint  against  the  offending 
government. 

Augmentations  of  warlike  force  are  as  clearly  forbidden 
in  neutral  territory  as  original  equipments.  This  applies  to 
armed  expeditions,  and  also  to  ships  of  war,  which  are  a 
species  of  armed  expedition.  International  Law  imposes 
upon  neutral  states  the  obligation  of  using  all  reasonable 
means  to  prevent  such  acts  as  the  increase  of  the  armament 


1 See  § 250. 


TOWARDS  BELLIGERENT  STATES. 


531 


of  any  belligerent  vessel  of  war  in  their  waters  or  the  recruit- 
ment of  fighting  men  for  its  crew.  Reference  is  made  to 
this  duty  in  the  second  of  the  three  rules  of  the  Treaty  of 
Washington,1  under  which  Great  Britain  was  condemned  in 
damages  on  account  of  the  clandestine  augmentation  of  the 
warlike  force  of  the  Shenandoah  by  the  enlistment  of  men 
for  her  crew  in  the  port  of  Melbourne.2  Whatever  opinions 
may  be  held  as  to  some  of  the  requirements  of  the  three 
rules,  there  can  be  no  doubt  that  in  exacting  from  neutrals 
proper  vigilance  for  the  prevention  of  such  proceedings  as 
those  of  the  Confederate  cruiser  in  the  Australian  port  they 
did  not  go  beyond  existing  and  admitted  law.  Long  before 
1865  it  had  been  recognized  that  a belligerent  vessel  ought 
not  to  leave  a neutral  port  a more  efficient  fighting-machine 
than  she  entered  it,  and  wise  neutrals  had  armed  their  exec- 
utive government  with  power  to  prevent  infringement  of 
their  sovereignty  in  this  respect.  The  American  Foreign 
Enlistment  Act  of  1818  dealt  with  the  case  of  armed  vessels 
which  at  the  time  of  their  arrival  within  American  waters 
were  ships  of  war  in  the  service  of  belligerents,  and  forbade 
any  person  within  the  territory  or  jurisdiction  of  the  United 
States  to  increase  the  number  of  their  guns,  change  them  for 
guns  of  a larger  calibre,  or  add  “any  equipment  solely  ap- 
plicable to  war.”  It  also  forbade  enlistment  on  board  any 
such  vessel,  except  when  the  persons  enlisted  were  subjects 
of  the  state  owning  the  vessel  and  were  transiently  in  the 
United  States.3  The  British  act  of  the  following  year 
contained  similar  provisions,  and  did  not  make  any  excep- 
tion in  favor  of  the  enlistment  of  belligerent  subjects.4  In 
these  respects  its  provisions  were  re-enacted  by  the  Foreign 
Enlistment  Act  of  1870,  which  superseded  it  and  is  the 

1 See  § 263. 

2 Award  of  the  Geneva  Arbitrators,  for  which  see  Wharton,  International 
Law  of  the  United  States,  § 402  a,  or  British  State  Papers,  North  America, 
No.  2 {1873),  p.  4. 

3 Fifteenth  Congress,  Sess.  1,  Ch.  VIII 

* 59  Geo.  III.,  c.  69. 


532 


THE  DUTIES  OF  NEUTRAL  STATES 


neutrality  statute  now  in  force  in  the  United  Kingdom.1  It 
must,  however,  be  remembered  that  the  municipal  laws  of  an 
independent  state  are  not  the  measure  of  its  international 
obligations.  They  may  go  beyond  or  fall  short  of  the  duties 
it  owes  to  other  powers.  In  the  first  case  belligerents  cannot 
complain  if  the  neutral  does  not  act  up  to  the  strictness  of 
its  own  statutes,  provided  that  it  performs  on  their  behalf 
all  it  is  bound  to  do  by  the  common  law  of  nations ; and  in 
the  second  case  the  neutral  cannot  evade  responsibility  for 
any  shortcomings  of  which  it  may  be  guilty  by  the  plea  that 
it  has  fulfilled  all  the  requirements  of  its  own  law.  We 
cannot  argue  from  the  presence  of  a rule  in  a neutrality  stat- 
ute to  its  presence  in  International  Law.  But  when,  as  in 
the  case  before  us,  other  evidence  shows  that  the  rule  in 
question  is  part  of  the  international  code,  its  enforcement 
by  municipal  statute  gives  it  additional  authority. 

§ 257. 

We  have  seen  that  neutral  states  are  bound  to  restrain  the 
activity  of  agents  of  the  warring  powers  in  several  important 
particulars.  We  have  also  seen  that  their  own 
thetr^ubjecST™11  subjects  share  the  prohibitions  laid  upon  bel- 

enter  the  military  . . . . , . 

or  naval  service  of  ligerents  in  connection  with  the  fitting  out  ot 

the  belligerents  or  ...  . . , c , . 

accept  letters  of  expeditions,  the  recruitment  of  men  and  the 

marque  from  them.  . . , . ...  . . . T 

increase  ot  the  warlike  force  ot  vessels.  In 
some  respects  their  duty  with  regard  to  the  former  is 
larger  than  their  duty  with  regard  to  the  latter.  They 
may  not  prevent  belligerent  subjects  from  leaving  their 
territory  in  order  to  take  service  in  one  or  the  other  of  the 
hostile  armies  or  navies,  but  they  are  hound 

Not  to  permit  their  subjects  to  enter  the  military  or  naval  ser- 
vice of  the  belligerents  or  accept  letters  of  marque  from  them. 

This  rule  applies  not  only  to  the  enlistment  of  neutral  sub- 
jects within  neutral  territory,  but  also  to  their  departure 
1 33  and  34  Viet.,  c.  90. 


TOWARDS  BELLIGERENT  STATES. 


533 


from  their  country  in  order  to  enlist  abroad.  It  is  not 
implied  for  a moment  that  the  government  of  a neutral  coun- 
try is  obliged  to  keep  watch  over  each  unit  of  its  population, 
and  can  be  made  responsible  if  a man  here  and  another  there 
crosses  its  frontier  for  the  purpose  of  taking  service  with  a 
belligerent.  These  things  cannot  be  prevented  and  are  too 
small  to  be  matters  of  serious  concern.  But  anything  like 
recruiting  on  a large  scale  within  neutral  territory  can  be 
easily  discovered,  and  should  be  put  down  at  once  ; and  a 
moderate  amount  of  vigilance  will  enable  an  administration 
to  detect  and  prevent  the  issue  of  its  subjects  from  its  shores 
in  a continuous  stream  in  order  to  enlist  outside  its  jurisdic- 
tion in  the  service  of  either  belligerent.  The  government  of 
St.  Petersburg  was  well  aware  in  1876  that  thousands  of 
enthusiastic  Russian  volunteers  were  pouring  across  the 
southern  borders  of  its  dominions  in  order  to  join  the  Ser- 
vian army,  then  engaged  under  a Russian  general  in  warfare 
with  the  Turks.1  But  it  made  no  effort  to  restrain  them, 
and  was  undoubtedly  guilty  of  a breach  of  neutrality  towards 
Turkey.  Popular  feeling  would  have  made  restrictive  action 
difficult,  if  not  impossible.  It  was  stirred  to  its  depths  by 
sympathy  with  oppressed  co-religionists,  and  was  not  long 
before  it  brought  about  a war  for  their  liberation.  The 
executive  authorities  of  other  nations  have  sometimes  been 
hampered  in  a similar  way,  when  they  were  actuated  by  a more 
sincere  desire  to  fulfil  their  neutral  obligations  than  was 
shown  by  the  Russian  administration  on  the  occasion  to  which 
we  have  referred.  American  sympathy  with  France  made  the 
task  of  Washington,  in  preserving  an  impartial  neutrality 
between  her  and  Great  Britain  in  the  war  which  broke  out 
in  1793,  far  more  difficult  than  it  need  have  been.  The 
feeling  in  favor  of  the  Canadian  insurgents  in  1838,  and  of 
Ireland  during  the  Fenian  troubles,  produced  occurrences 
which  weakened  the  position  of  the  United  States  in  inter- 
national controversy ; while  the  sympathy  of  a large  propor- 

1 Fyffe,  Modern  Europe , III.,  489  ; Annual  Register  for  187 6,  pp.  280-283. 


534 


THE  DUTIES  OF  NEUTRAL  STATES 


tion  of  the  official  classes  in  England  with  the  Southern 
Confederacy  in  the  American  Civil  War  helped  to  bring 
about  a feebleness  of  executive  action  which  in  the  end  cost 
the  country  dear.  But  though  a duty  may  be  difficult,  its 
performance  cannot  be  dispensed  with  on  that  account.  No 
state  can  plead  in  bar  of  just  demands  for  satisfaction  that 
its  people  were  determined  to  prevent  their  rulers  from  ful- 
filling their  international  obligations. 

The  offer  of  letters  of  marque  to  neutral  seamen  by  a 
belligerent  has  been  forbidden  by  International  Law  for 
more  than  a century;  and  neutral  governments  have  taken 
upon  themselves  the  duty  of  preventing  the  acceptance  of 
such  commissions  by  their  citizens.  The  general  observance 
of  the  Declaration  of  Paris  of  1856  has  deprived  the  subject 
of  practical  importance.  When  states  are  bound  not  to 
employ  privateers  at  all,  it  is  clear  that  they  cannot  offer 
privateering  commissions  to  neutral  subjects.  The  few 
powers  which  have  not  signed  the  Declaration  are  technically 
untrammelled  by  such  restrictions;  but  the  public  opinion 
of  the  civilized  world  is  so  strongly  opposed  to  irregular 
hostilities  carried  on  by  neutral  subjects  that  there  is  little 
chance  of  their  availing  themselves  of  the  liberty  they  nomi- 
nally possess.  In  the  one  instance  since  1856  when  anything 
of  the  kind  was  attempted,  no  applications  for  the  proffered 
letters  of  marque  were  made.1  The  United  States,  which 
is  by  far  the  most  important  of  the  non-signatory  powers, 
has  shown  a disposition  to  go  beyond  the  ordinary  law  on  the 
subject  and  regard  as  piracy  the  capture  of  vessels  belonging 
to  one  belligerent  by  neutral  privateers  in  the  service  of  the 
other.  Not  only  have  its  citizens  “been  forbidden  by  stat- 
ute to  take  part  in  the  equipment  or  manning  of  privateers 
to  act  against  nations  at  peace  with  the  United  States,”  but 
in  addition  “treaties,  making  privateering  under  such  cir- 
cumstances piracy,  have  been  negotiated  with  England, 
France,  Prussia,  Holland,  Spain  and  Sweden.”2  Some  of 

1 See  § 223.  2 Wharton,  International  Law  of  the  United  States,  § 385. 


TOWARDS  BELLIGERENT  STATES. 


535 


these  have  been  abrogated ; but  enough  remain  to  indicate  a 
settled  policy,  and  they  have  been  reinforced  by  others  con- 
cluded in  recent  times  with  the  republics  of  South  and  Cen- 
tral America. 

§ 258. 

The  last  of  the  obligations  laid  upon  neutral  states  is 

To  make  reparation  to  belligerents  ivho  mag  have  been  seriously 
and  specifically  injured  by  failure  on  their  part  to  per- 
form their  neutral  duties. 

It  used  to  be  held  that  a belligerent  state  had  no  legal 
claim  on  a neutral  for  redress,  because  none  of  its  rights 
were  violated  by  such  infractions  of  neutrality  To  make 
as  we  have  been  considering.  Neutral  sover-  [^“ents  who  may 
eignty  was  defied  and  the  integrity  of  neutral  ^Sliy  aend  sSpec"m- 
territory  set  at  naught  when  armed  expeditions  faimVe  on'  tJleo-' 
were  fitted  out  or  captures  made  within  it ; but  the£  Neutral™1 
between  the  belligerents  there  was  nothing  but  duties' 
force,  and  consequently  no  wrong  was  suffered  by  the  side 
which  succumbed  to  force.  This  was  the  argument ; and 
abundant  instances  of  its  application  can  be  culled  from 
American  as  well  as  British  sources.1  But  it  involves  the 
curious  fallacy  that  when  International  Law  gives  a state 
certain  rights,  the  neglect  of  which  may  seriously  injure 
another  state,  the  latter  is  not  entitled  to  demand  from  the 
former  a due  insistence  upon  them.  It  is  a grave  error  to 
suppose  that  neutrals  are  endowed  with  large  privileges  and 
armed  with  large  powers  to  use  or  toss  away  as  they  please. 
Their  duty  is  to  vindicate  their  neutrality.2  Respect  for  it 
is  not  a matter  between  them  and  the  offending  belligerent 
only.  It  concerns  the  whole  family  of  nations,  and  most  of 
all  the  power  which  is  most  likely  to  be  injured  by  a failure 

1 See  Historicus  on  Belligerent  Violation  of  Neutral  Bights. 

2 Heffter,  Droit  International,  § 146  ; Bluntschli,  Droit  International 
Codifie,  § 781  ; Calvo,  Droit  International,  § 2338. 


536 


THE  DUTIES  OF  NEUTRAL  STATES 


to  insist  upon  it.  No  fine-spun  theory  can  silence  the  voice 
of  an  aggrieved  nation.  It  always  does  and  always  will 
complain  when  it  is  hindered  in  its  war  by  neutral  partiality 
or  neglect.  The  late  Lord  Bowen  summed  up  the  question 
well,  when  in  a pamphlet  on  the  Alabama  Claims  published 
in  1868  he  wrote:  “Some  people  have  hinted  that  the  North 
has  no  rights  at  all  in  the  business.  The  rights  violated  (so 
runs  the  argument)  are  those  of  the  neutral  only.  May  not 
the  neutral  do  what  it  pleases  him  with  his  own  ? If  this 
were  excellent  learning  it  would  be  indifferent  sense.  In  spite 
of  local  jurisconsults,  America  will  still  be  of  opinion  that 
she  was  very  closely  concerned  with  the  uninterrupted  equip- 
ment in  English  ports  of  cruisers  like  the  Alabama .”  1 The 
result  of  the  Geneva  Arbitration  of  1872  went  far  to  remove 
any  lingering  doubt  as  to  neutral  responsibility.  When 
Great  Britain  was  cast  in  heavy  damages  because  of  her 
failure  to  fulfil  certain  obligations  which  in  the  opinion  of 
the  Arbitral  Tribunal  were  imposed  upon  her  by  her  neu- 
trality, it  was  impossible  any  longer  to  contend  that  an 
injured  belligerent  had  no  claim  upon  the  power  whose 
executive  was  too  weak  or  too  careless  to  enforce  its  neutral 
rights.  The  principle  of  reparation  must  be  regarded  as 
having  been  definitely  embodied  in  the  international  code. 

But,  while  the  principle  is  unquestioned,  its  application  is 
by  no  means  free  from  difficulty.  The  exact  nature  of  the 
reparation  to  be  given  cannot  be  fixed  by  legal  rule.  It 
must  vary  with  circumstances  , and  what  is  appropriate  in 
each  case  must  be  settled  by  negotiation  between  the  pow- 
ers concerned.  If  property  is  found  within  the  jurisdiction 
of  a power  whose  neutrality  was  violated  by  its  capture,  it 
must  be  restored  to  its  original  owners.  If  such  a remedy 
is  impossible  or  inapplicable,  pecuniary  compensation  should 
be  given.  International  controversies  are  frequently  settled 
by  the  payment  of  damages  ; and  when  the  parties  concerned 

1 Quoted  by  Lord  Justice  Davey  in  the  Law  Quarterly  Review  for  July, 
1894,  p.  214. 


TOWARDS  BELLIGERENT  STATES. 


537 


have  been  unable  to  agree  upon  the  amount,  they  have  often 
left  it  to  be  determined  by  a board  of  Arbitrators.  Claims 
for  remote  or  consequential  damages  are  generally  regarded 
as  inadmissible.  In  the  course  of  the  Alabama  controversy 
the  United  States  demanded  from  Great  Britain  compensa- 
tion for  the  addition  of  a large  sum  to  the  cost  of  the  war, 
the  enhanced  payments  of  insurance  on  sea-borne  goods  and 
the  transfer  of  the  American  commercial  marine  to  the  Brit- 
ish flag.  When  these  were  ruled  out  by  the  Arbitrators,  a 
claim  for  the  expense  of  pursuing  the  Alabama  and  her  sis- 
ter cruisers  was  pressed  , but  the  Geneva  Tribunal  decided 
against  it  as  not  being  “ properly  distinguishable  from  the 
general  expenses  of  the  war  carried  on  by  the  United 
States.”  1 These  decisions  have  been  approved  by  jurists, 
and  are  generally  regarded  as  sound  interpretations  of  ac- 
cepted law.  We  may  take  it  as  settled  that  the  injuries 
for  which  a belligerent  can  demand  compensation  from  a 
neutral  must  be  immediate  and  specific.  They  must  also  be 
serious.  The  cumbrous  machinery  of  international  com- 
plaint should  not  he  set  in  motion  for  trivial  causes.  The 
complicated  organization  of  modern  society,  and  the  ease 
with  which  subjects  of  different  states  can  hold  communica- 
tion with  each  other  and 'move  from  place  to  place,  renders 
it  impossible  for  any  executive,  however  careful,  to  prevent 
small  infractions  of  neutrality  on  the  part  of  isolated  indi- 
viduals. It  cannot  be  held  responsible  for  what  it  is  unable 
to  control.  Some  lack  of  reasonable  vigilance,  some  element 
of  negligence  or  some  wilful  omission,  must  be  proved 
against  it  before  it  can  be  considered  liable. 

§ 259. 

This  brings  us  to  the  difficult  question  of  the  amount  oi 
care  that  can  justly  be  demanded  by  a bellig-  The  measure  of 
erent  from  a neutral  government  in  matters  “due  diligence.” 
connected  with  the  enforcement  of  respect  for  its  neutrality. 

1 Wharton,  International  Law  of  the  United  States,  § 150  g. 


538 


THE  DUTIES  OF  NEUTRAL  STATES 


The  first  and  third  of  the  three  rules  of  the  Treaty  of  W ash- 
ington  of  1871  declared  that  neutrals  were  bound  to  use 
“ due  diligence  ” to  prevent  various  acts  the  nature  of 
which  we  shall  soon  discuss.  Immediately  a controversy 
arose  as  to  the  true  meaning  of  this  phrase.  By  what  stan- 
dard was  “ due  diligence  ” to  be  measured  ? What  amount 
of  care  did  it  imply?  The  American  answer  to  these  ques- 
tions is  to  be  found  in  the  third  part  of  the  case  of  the 
United  States  laid  before  the  Geneva  Tribunal.  The  es- 
sence of  it  is  contained  in  the  statement  that  diligence  in 
order  to  be  due  must  be  “ commensurate  with  the  emergency 
or  with  the  magnitude  of  the  results  of  negligence.”  The 
British  case  set  forth  that  “ Due  diligence  on  the  part  of  a 
sovereign  government  signifies  that  measure  of  care  which 
the  government  is  under  an  obligation  to  use  for  a given 
purpose.  This  measure,  when  it  has  not  been  defined  by 
international  usage  or  agreement,  is  to  be  deduced  from  the 
nature  of  the  obligation  itself,  and  from  those  considerations 
of  justice,  equity  and  general  expediency  on  which  the  law 
of  nations  is  founded.” 1 This  definition  can  hardly  be 
esteemed  a success.  We  ask  for  a measure  of  neutral  obli- 
gation, and  we  are  told  that  it  is  to  be  “ deduced  from  the 
nature  of  the  obligation  itself,”  that  is,  from  the  very  thing 
to  be  measured.  Nor  is  the  American  definition  much  more 
satisfactory  A rule  which  varies  with  the  objects  to  which 
it  is  applied  is  not  a useful  guide  in  emergencies.  The 
Arbitrators,  however,  accepted  the  principle  of  a changing 
standard,  and  embodied  a most  pronounced  rendering  of  it 
in  their  Award.  In  the  second  of  their  recitals  they  laid 
down  the  proposition  that  “ due  diligence  ” ought  to  be  exer- 
cised by  neutral  states  “ in  exact  proportion  to  the  risks  to 
which  either  of  the  belligerents  may  be  exposed  from  a fail- 
ure to  fulfil  the  obligations  of  neutrality  on  their  part.”2 
This  is  the  least  happy  of  all  the  attempts  to  discover  a 

1 British  State  Papers,  North  America,  No.  1 {1872),  p.  24. 

2 Wharton,  International  Law  of  the  United  States,  § 402  a. 


TOWARDS  BELLIGERENT  STATES. 


539 


standard  of  neutral  obligation.  It  imposes  different  degrees 
of  responsibility  upon  different  neutrals  in  the  same  war, 
and  even  upon  the  same  neutral  in  respect  of  different  bel- 
ligerents in  the  same  war,  and  thus  destroys  that  impartiality 
which  is  the  essence  of  neutral  duty. 

The  subject  is  no  doubt  difficult.  A full  discussion  of  it 
would  involve  an  examination  of  the  doctrine  of  culpa  from 
its  source  in  the  law  of  ancient  Rome  down  to  the  present 
time.  Much  information  concerning  it  will  be  found  in  the 
American  Case  and  in  the  Reasons  of  Sir  Alexander  Cockburn 
for  Dissenting  from  the  Award.  Considerations  of  space 
forbid  a long  digression  in  order  to  deal  with  matters  some 
of  which  are  hardly  relevant  to  the  issue  before  us.  We 
must  be  content  to  point  out  that  what  is  wanted  is  some 
fixed  standard  of  diligence,  which  shall  be  the  same  for  all 
neutral  states  and  shall  impose  on  them  the  same  measure  of 
duty  towards  all  belligerents.  In  order  to  supply  this  need 
it  is  necessary  to  discover  an  equivalent  in  international 
affairs  of  the  bonus  et  diligens  paterfamilias  of  the  scientific 
jurists.  The  care  shown  by  such  a person  in  his  own  affairs 
was  the  measure  of  the  diligentia  which  a man  was  bound  to 
show  when  the  interests  of  others  were  entrusted  to  his  keep- 
ing, and  the  want  of  it  was  the  culpa  for  which  he  was  liable 
before  the  law.  Now  if  we  substitute  for  the  bonus  pater- 
familias the  bona  civitas , all  that  remains  to  be  done  is  to 
point  out  some  branch  of  the  ordinary  work  of  an  executive 
which  bears  close  resemblance  to  the  task  of  preserving  neu- 
trality in  time  of  war.  If  this  can  be  discovered,  then  the 
care  which  a well-governed  state  takes  in  the  performance 
of  the  former  will  be  the  measure  of  the  diligence  to  be  ex- 
acted from  the  latter.  W e have  not  far  to  look  in  order  to  find 
what  we  seek.  In  nine  cases  out  of  ten  attempts  to  use  neu- 
tral territory  for  warlike  purposes  are  connected  with  coasts 
and  ships  and  maritime  affairs.  The  same  may  be  said  of 
smuggling,  which  is  the  breach  of  municipal  law  most  nearly 
resembling  in  character  and  modes  of  operation  such  ordinary 


540 


THE  DUTIES  OF  NEUTRAL  STATES 


breaches  of  neutrality  as  the  secret  equipment  of  expeditions 
and  cruisers,  or  the  underhand  increase  of  their  fighting 
force.  Here  then  is  the  standard  we  are  in  quest  of.  The 
kind  and  amount  of  diligence  which  a strong  and  careful 
government  would  use  to  put  down  smuggling  ought  to  be 
used  by  neutral  states  to  fulfil  the  obligations  of  their  neu- 
trality. It  is  not  pretended  that  this  measure  of  due  dili- 
gence has  been  adopted  b}^  states  and  made  a part  of  the  law 
which  regulates  their  mutual  intercourse.  No  general  agree- 
ment on  the  subject  has  been  arrived  at.  The  suggested 
standard  is  put  forth  as  an  attempt  to  solve  a difficult  ques- 
tion, which  has  arisen  in  recent  times  to  vex  the  peace  of 
nations,  and  has  not  hitherto  received  a satisfactory  answer. 

§ 260. 

A case  which  occurred  early  in  the  present  century, 
during  the  war  between  Great  Britain  and  the  United  States, 
The  consequences  raised,  but  can  hardly  be  said  to  have  settled, 
unlawful  attack  the  question  whether  a belligerent  vessel  which 
in  neutral  waters.  resjgts  hostile  attack  in  neutral  waters  deprives 

its  government  thereby  of  the  right  of  redress  from  the  state 
in  whose  jurisdiction  the  outrage  was  committed.  In  the 
year  1814,  the  American  privateer  General  Armstrong  was 
destroyed  in  the  neutral  Portuguese  harbor  of  Fayal  in 
consequence  of  the  action  of  a British  squadron  under 
Commodore  Lloyd.  The  United  States  held  Portugal 
responsible  and  demanded  compensation  for  the  owner  of 
the  privateer.  Their  claims  were  resisted,  and  after  a long 
diplomatic  correspondence  the  matter  was  referred  in  1851 
to  the  arbitration  of  Louis  Napoleon,  then  President  of  the 
French  Republic.  In  November,  1852,  he  decided  that  the 
American  Government  was  not  entitled  to  any  redress  from 
Portugal,  because  the  crew  of  the  privateer  did  not  apply 
“from  the  beginning  for  the  intervention  of  the  neutral 
sovereign,”  but  began  the  conflict  by  firing  upon  some 
British  boats  which  approached  their  vessel  in  the  night. 


TOWARDS  BELLIGERENT  STATES. 


541 


He  held  that  by  this  conduct,  Captain  Reid  of  the  General 
Armstrong  had  “ failed  to  respect  the  neutrality  of  the  terri- 
tory of  the  foreign  sovereign,  and  released  that  sovereign  of 
the  obligation  in  which  he  was,  to  afford  him  protection  by 
any  other  means  than  that  of  a pacific  intervention.”1  The 
government  of  the  United  States  did  not  consider  the  facts 
on  which  the  award  was  based  to  have  been  adequately 
proved,  and  Congress  voted  an  indemnity  to  the  owners  of 
the  destroyed  vessel.  The  doctrine  involved  in  the  decision 
has  been  accepted  in  all  its  fulness  by  British  publicists,2 
while  American  jurists  have  been  disposed  to  deny  or  qualify 
it.3  A close  examination  of  the  case  leads  to  the  conclusion 
that  the  award  was  right,  but  the  principle  of  the  decision 
wrong.  Whatever  may  have  been  the  original  intention  of 
the  British  commander,  there  is  little  doubt  that  the  armed 
conflict  was  commenced  by  the  crew  of  the  American  vessel, 
though  it  was  afterwards  renewed  by  their  enemies  in  utter 
disregard  of  the  rights  of  Portugal.  Both  sides  placed 
themselves  in  the  wrong,  and  those  who  eventually  suffered 
had  little  claim  to  redress  from  the  neutral  whom  they  had 
injured.  But  when  it  is  broadly  stated  that  a belligerent 
who  defends  himself  from  hostile  attack  in  neutral  territory 
frees  the  neutral  sovereign  from  all  responsibility,  we  may 
venture  to  suggest  a doubt.  The  side  which  fights  purely  in 
self-defence  can  hardly  be  considered  as  partieeps  criminis, 
and  therefore  disentitled  to  redress.  Undoubtedly  the  vessel 
or  force  attacked  ought  to  appeal  immediately  to  the  neutral 
for  protection  ; and,  if  it  neglects  to  do  so  when  ample  means 
are  at  hand,  the  so-called  rule  might  apply.  But  in  cases 
where  either  the  will  or  the  power  to  protect  is  wanting,  the 
elementary  right  of  self-defence  surely  comes  into  play.4 

1 Wharton,  International  Law  of  the  United  States,  § 227. 

2 e.g.  Hall,  International  Law,  § 228. 

3 e.g.  Dana,  note  208  to  Wheaton’s  International  Law. 

4 For  an  account  of  the  case  of  the  General  Armstrong,  see  Calvo,  Droit 
International,  § 2359  ; and  Wheaton,  International  Law  (Lawrence’s  ed.), 
note  217. 


542 


THE  DUTIES  OF  NEUTRAL  STATES 


§261. 

We  have  seen  that  a neutral  state  is  hound  to  prevent  the 
fitting  out  of  warlike  expeditions  within  its  jurisdiction  for 
the  service  of  one  of  the  belligerents  against  the 

The  difficulty  with  , , . . . . , . . . 

regard  to  ships  other.  In  connection  with  this  duty  the  ques- 

armed  and  . . 

equipped  in  neu-  tion  arises  whether  a ship  built  and  equipped 

tral  waters  for  the  . * 

warlike  purposes  tor  warlike  purposes  is  to  be  placed  on  the  same 

of  a belligerent.  ir  jt  . L 

footing  as  an  expedition.  If  she  is  regarded 
merely  as  a weapon,  the  neutral  government  will  be  under 
no  obligation  to  prevent  her  departure  from  its  waters.  As 
contraband  of  war,  she  will  be  subject  to  capture  and  confis- 
cation by  the  belligerent  against  whom  she  is  to  be  used  ; 
but  the  authorities  of  the  neutral  country  will  not  be  held 
responsible  for  her  in  any  way.1  If,  on  the  other  hand,  she 
is  deemed  to  be  in  the  same  legal  position  as  an  expedition, 
they  are  liable  for  any  negligence  or  partiality  which  may 
result  in  her  unmolested  departure  or  a subsequent  augmen- 
tation of  her  warlike  force  within  their  dominions.  The 
problem  thus  presented  is  very  difficult  and  very  important. 
It  did  not  arise  till  the  quickening  of  the  sense  of  state-duty 
in  the  matter  of  neutrality  at  the  end  of  the  eighteenth 
» century  led  the  government  of  the  United  States  in  1793  to 
make  exceptional  efforts  for  the  protection  of  its  own  sov- 
ereign rights  from  violation  by  either  of  the  warring  parties 
and  for  the  preservation  of  absolute  impartiality  between 
them.2  Fresh  powers  were  demanded  by  the  executive  and 
granted  by  the  legislature,  first  in  America  and  soon  after- 
wards in  Great  Britain.  The  Foreign  Enlistment  Acts  of 
the  two  countries,  passed  in  1818  and  1819  respectively,  are 
municipal  statutes,  and  cannot  be  regarded  as  conclusive 
evidence  of  international  obligation.  They  show,  however, 
that  this  latter  was  developing,  and  that  the  governments 
concerned  wished  to  keep  pace  with  its  growth  and  arm 


1 See  § 277. 


2 See  § 244. 


TOWARDS  BELLIGERENT  STATES. 


543 


themselves  with  powers  sufficient  for  the  fulfilment  of  the 
duties  imposed  upon  them.  But  what  were  those  duties  ? 
In  the  United  States  a long  series  of  judicial  decisions  pro- 
duced a body  of  doctrine  which  dealt  with  almost  every 
possible  combination  of  circumstances  connected  with  the 
fitting  out,  arming  and  equipping  of  belligerent  ships  in 
neutral  waters.  The  revolt  of  the  Spanish  Colonies,  and 
the  sympathy  felt  for  the  insurgents  by  all  sections  of  the 
American  people,  produced  endless  efforts  to  violate  Ameri- 
can neutrality,  and  provided  the  Supreme  Court  in  the  great 
days  of  Marshall  and  Story  with  a large  number  of  cases 
under  the  Foreign  Enlistment  Act  of  1818.  In  Great  Britain, 
on  the  contrary,  there  was  but  one  case  under  the  correspond- 
ing act  of  1819,  before  the  outbreak  of  the  Civil  War  between 
the  two  sections  of  the  American  Union,  and  the  attempts 
of  the  South  to  fit  out  cruiser  after  cruiser  in  English  ports, 
forced  upon  the  statesmen  and  judges  of  the  United  Kingdom 
the  duty  of  interpreting  their  own  statute  and  defining  their 
views  of  international  obligation  in  matters  connected  with 
neutrality.  The  general  opinion  appears  to  have  been  that 
a ship  adapted  for  war  was  merely  an  article  of  contraband 
trade,  unless  she  left  the  neutral  port  in  a condition  to  com- 
mence hostilities  the  moment  she  passed  beyond  territorial 
waters  and  entered  the  high  seas.  In  that  case,  and  in  that 
case  only,  was  the  neutral  under  an  obligation  to  prevent  her 
exit.  This  was  the  doctrine  laid  down  in  1863  by  Chief 
Baron  Pollock  and  Baron  Bramwell  of  the  Court  of  Ex- 
chequer in  the  case  of  the  Alexandra ,a  though  the  latter 
admitted  that  his  decision  would  allow  a vessel  to  leave  a 
neutral  port  ready  for  war  in  all  respects  except  her  arma- 
ment, and  the  armament  to  be  sent  at  the  same  time  in 
another  vessel  which  should  put  it  on  board  beyond  the 
marine  league.  “Thus,”  said  he,  “the  spirit  of  Interna- 
tional Law  may  be  violated.”  But  nevertheless  he  held  that 
by  the  terms  of  the  Foreign  Enlistment  Act  he  was  obliged 
1 Hurlstone  and  Coltman,  Exchequer  Reports , II.,  431. 


544 


THE  DUTIES  OF  HEIJTRAL  STATES 


to  put  this  unsatisfactory  interpretation  upon  its  provisions.1 
Owing  to  various  technicalities  the  case  of  the  Alexandra 
could  not  be  carried  to  a satisfactory  conclusion,  and  after 
a detention  of  a year  at  Liverpool  the  vessel  was  released. 
She  was  again  seized  on  a fresh  charge  at  Nassau  in  1864, 
and  the  proceedings  on  the  second  trial  were  not  finished 
when  the  Confederacy  fell.  The  action  of  the  British  Gov- 
ernment with  regard  to  this  vessel,  together  with  its  purchase 
of  the  two  iron-clad  rams  which  Messrs.  Laird  & Co.,  of 
Birkenhead,  were  more  than  suspected  of  building  to  the 
order  of  Confederate  agents,  its  seizure  of  the  Pampero  in 
the  Clyde,  and  its  stoppage  of  the  sale  of  the  Anglo-Chinese 
gunboats  against  the  advice  of  its  own  law  officers,2  goes  far 
to  show  that  the  rulers  of  the  United  Kingdom  had  uneasy 
doubts  as  to  the  validity  of  the  doctrine  laid  down  in  their 
law-courts  and  maintained  in  their  despatches.  If  it  were 
correct,  nothing  would  be  easier  than  to  fit  out  belligerent 
vessels  of  war  in  neutral  ports.  The  ship  herself  could  leave 
unarmed.  Her  guns  could  follow  her  immediately  on  another 
vessel  built  for  commercial  purposes,  or  could  be  sent  at  the 
same  time  in  such  a vessel  from  an  adjacent  port.  The  two 
could  meet  on  the  high  seas  just  outside  neutral  jurisdiction, 
and  there  combine  the  scattered  elements  of  armament,  so  as 
to  make  an  efficient  cruiser,  ready  from  that  moment  to  pur- 
sue her  career  of  destruction.  This  is  what  really  happened 
in  the  case  of  the  Alabama.  She  escaped  from  Liverpool  on 
July  29,  1862,  unarmed  and  without  a fighting  crew,  but 
nevertheless  built  and  equipped  for  war  rather  than  for  com- 
merce. Part  of  her  crew  left  Liverpool  the  next  day  in  the 
tug  Hercules,  and  joined  her  in  Moelfra  Bay  near  Beaumaris  ; 
while  the  remainder,  with  Captain  Semmes,  her  commander, 
and  a portion  of  her  armament,  cleared  from  Liverpool  in  the 
Bahama  on  August  13.  About  the  same  date  the  rest  of  her 
armament  was  sent  from  London  in  the  barque  Aggripina. 

1 Wheaton,  International  Law  (Dana’s  ed.),  pp.  567-571,  note. 

2 British  State  Papers,  North  America , No.  2 {1873),  pp.  102-106. 


TOWARDS  BELLIGERENT  STATES. 


545 


On  August  18,  the  Bahama  joined  the  Alabama  off  Terceira, 
one  of  the  Azores,  and  found  the  Aggripina  already  there. 
The  guns,  armament  and  fighting  crew  were  then  transferred 
to  the  Alabama,  the  commission  of  Captain  Semmes  produced, 
the  Confederate  flag  run  up,  and  the  cruise  of  the  famous 
commerce-destroyer  commenced.  Similar  proceedings  oc- 
curred in  other  cases.  The  Florida , the  Georgia  and  the 
Shenandoah  left  British  ports  unarmed,  and  the  men  and 
weapons  which  enabled  them  to  carry  on  hostilities  were  for- 
warded from  other  British  ports  to  a rendezvous  previously 
agreed  upon.1 

It  is  not  necessary  to  go  back  upon  settled  controversies, 
and  enter  into  what  is  after  all  merely  an  antiquarian  dis- 
cussion as  to  whether  the  International  Law  of  1861-1865 
forbade  the  departure  from  neutral  waters  of  ships  fitted 
out  therein  for  a belligerent,  only  when  they  were  ready  to 
commence  hostilities  the  moment  they  were  outside  neutral 
jurisdiction,  or  whether  the  prohibition  was  wider  and 
extended,  as  the  United  States  held,  to  all  vessels  which 
could  by  any  reasonable  construction  of  evidence  be  looked 
upon  as  intended  for  warlike  purposes.  The  curious  in  such 
matters  will  find  a literature  voluminous  enough  to  occupy 
the  best  years  of  their  lives  in  the  books,  pamphlets,  speeches 
and  despatches  poured  forth  for  more  than  ten  years  on  both 
sides  of  the  Atlantic,  in  elucidation  of  one  phase  or  another 
of  the  complex  series  of  international  difficulties  generically 
termed  the  Alabama  Question.  The  controversy  was  sum- 
marized from  an  American  point  of  view  by  Mr.  Caleb 
Cushing  in  his  Treaty  of  Washington , and  by  Professor 
Mountague  Bernard  from  a British  point  of  view  in  his 
Historical  Account  of  the  Neutrality  of  Great  Britain  during 
the  American  Civil  War.  It  covered  a vast  field  and  dealt 
with  many  other  points  besides  that  which  we  are  now  dis- 

1 For  a full  and  complete  history  of  these  vessels,  see  the  documents  pre- 
sented before  the  Arbitral  Tribunal  at  Geneva,  especially  the  British  and 
American  Cases  and  Counter-cases. 


546 


THE  DUTIES  OF  NEUTRAL  STATES 


cussing.  Looking  back  on  it  after  an  interval  of  more 
than  twenty  years,  we  can  hardly  fail  to  be  struck  with  the 
extent  to  which  the  passions  of  the  moment  blinded  good 
and  able  men  to  what  seem  to  us  obvious  considerations  of 
equity.  On  one  side  we  find  a tendency  to  rely  upon  tech- 
nical subtleties  and  substitute  legal  quibbles  for  substantial 
justice,  and  on  the  other  a disposition  to  magnify  grounds  of 
offence  and  seek  causes  of  quarrel  in  acts  hitherto  deemed 
perfectly  innocent.  It  cannot  be  doubted  that,  in  the  matter 
of  arming  and  equipping  belligerent  ships  in  neutral  waters, 
the  older  authorities,  including  several  who  belonged  to  the 
United  States,  supported  the  British  view.1  It  is  equally 
clear  that  many  modern  writers  hold  the  stricter  doctrine 
put  forward  in  the  controversy  by  the  American  advocates.2 
But  even  if  Great  Britain  was  right  in  her  contention  that 
she  had  neglected  no  neutral  duty  when  she  permitted  the 
original  departure  of  the  Alabama  and  her  sister  cruisers, 
we  must  conclude  that  International  Law  had  proved  inade- 
quate to  deal  in  a satisfactory  manner  with  a great  emer- 
gency. If,  on  the  other  hand,  she  was  wrong,  we  must  admit 
that  the  most  important  maritime  power  in  the  world  had 
been  guilty  of  a breach  of  International  Law  without  know- 
ing it  and  while  being  informed  by  all  her  authorities  that 
her  conduct  was  perfectly  correct.  The  explanation  of  the 
puzzle  is  that  no  certainty  existed,  or  could  exist,  at  the  time 
in  question.  Both  doctrine  and  practice  were  in  a transition 
state.  The  older  rule  no  longer  satisfied  the  awakened  con- 
science of  civilized  nations;  but  no  clear  and  definite  usage 
had  grown  up  to  provide  a substitute  for  it. 

1 Letters  of  Historicus,  VI.,  VII. 

2 e.g.  Calvo,  Droit  International , § 2326 ; Bluntschli,  Opinion  Impartiale 
sur  la  Question  de  V Alabama,  in  the  Bevue  de  Droit  International,  Vol.  II., 
pp.  452-485. 


TOWARDS  'BELLIGERENT  STATES. 


547 


§ 262. 

Two  principles  have  been  put  forward  as  the  basis  of  a new 
rule.  The  first  is  derived  from  the  long  series  Tw0  atternpts  t0 
of  American  decisions  in  the  cases  under  the  ^regard'to’the 
Foreign  Enlistment  Act  of  1818,  to  which  seis"^  neutraives’ 
reference  was  made  in  the  preceding  section.  ports' 

The  second  is  due  to  the  insight  of  a distinguished  English 
publicist.  We  will  take  them  in  order. 

The  great  judges  who  adorned  the  Supreme  Court  of  the 
United  States  during  the  first  quarter  of  the  nineteenth  cen- 
tury laid  down  again  and  again  that  the  intent  of  the  parties 
concerned  in  the  fitting  out,  arming  and  equipping  in  ques- 
tion should  be  the  determining  element  in  the  decision — • 
the  animus  vendendi  being  innocent,  the  animus  belligerendi 
guilty.  In  illustration  of  this  doctrine  it  will  be  sufficient 
to  cite  two  cases  out  of  the  multitude  available.  On  March 
12,  1822,  Judge  Story  in  delivering  the  judgment  of  the 
Supreme  Court  in  the  case  of  the  Santissima  Trinidad 1 took 
occasion  to  say : “ There  is  nothing  in  our  laws,  or  in  the  law 
of  nations,  that  forbids  our  citizens  from  sending  armed  ves- 
sels, as  well  as  munitions  of  war,  to  foreign  ports  for  sale. 
It  is  a commercial  adventure,  which  no  nation  is  bound  to 
prohibit,  and  which  only  exposes  the  persons  engaged  in  it 
to  the  penalty  of  confiscation.”  The  next  day  in  the  case  of 
the  Grran  Para 2 Chief  Justice  Marshall  decreed  restitution 
of  captured  property  brought  within  the  jurisdiction  of  the 
United  States,  on  the  ground  that  the  owner  of  the  capturing 
vessel,  which  had  been  built  and  equipped  in  Baltimore, 
“ fitted  her  out  with  intent  that  she  should  be  employed  in 
the  service  ” of  a nation  at  war  with  a power  with  which  the 
United  States  was  at  peace.  Dana  sums  up  the  doctrine  of 
these  and  numerous  other  cases  in  the  words  : “As  to  the 
preparing  of  vessels  within  our  jurisdiction  for  subsequent 

1 Wheaton,  Reports  of  the  Supreme  Court , VII.,  283. 

2 Ibid.,  VII.,  471, 


548 


THE  DUTIES  OF  NEUTRAL  STATES 


hostile  operations,  the  test  we  have  applied  has  not  been  the 
extent  and  character  of  the  preparations,  but  the  intent  with 
which  the  particular  acts  are  done.  ...  Is  the  intent  one 
to  prepare  an  article  of  contraband  merchandise,  to  be  sent 
to  the  market  of  a belligerent  subject  to  the  chances  of  cap- 
ture and  of  the  market  ? Or,  on  the  other  hand,  is  it  to  fit 
out  a vessel  which  shall  leave  our  port  to  cruise  immediately 
or  ultimately,  against  the  commerce  of  a friendly  nation  ? 
The  latter  we  are  bound  to  prevent.  The  former  the  bellig- 
erent must  prevent.”  1 

It  is  a grave  question  whether  the  principle  that  “the 
intent  is  all  ” furnishes  a workable  rule  in  the  complicated 
cases  that  frequently  arise  during  the  progress  of  a war. 
Nothing  is  more  difficult  to  prove  than  intentions.  They 
have  frequently  to  be  inferred  from  actions  of  an  ambiguous 
character.  Moreover,  the  two  intents  — that  of  selling  and 
that  of  making  war  — may  coexist  in  the  same  blind.  Dana 
himself  must  have  had  some  misgivings  about  the  rule  he 
champions  so  ably ; for  he  admits  that  “ the  line  may  often 
be  scarcely  traceable,”  though  he  hastens  to  add  that  “the 
principle  is  clear  enough.”2  But  surely  a line  that  is  often 
scarcely  traceable  is  not  a very  advantageous  boundary 
between  the  permitted  and  the  forbidden,  and  a principle 
that  requires  subtle  psychological  distinctions  for  its  due 
application  is  fitter  for  the  lecture-room  of  a Professor  of 
Mental  Philosophy  than  the  Bench  of  a Court  of  Law.  To 
what  refinements  it  may  lead  in  practice  the  case  of  the 
United  States  v.  Quincy 3 shows.  The  Court  distinguished 
carefully  between  a fixed  and  present  intent  and  a contingent 
or  conditional  intent,  and  ruled  that  an  intent  to  go  to  the 
West  Indies  and  endeavor  to  procure  funds  for  a belliger- 
ent cruise  was  a contingent  intent,  and  therefore  innocent, 
whereas  an  intent  to  go  on  a belligerent  cruise  that  was 
liable  to  be  defeated  by  failure  to  obtain  the  necessary  funds 

1 Note  215  to  Wheaton’s  International  Law,  pp.  562,  563. 

2 Ibid.,  p.  563.  3 Peters,  Reports  of  the  Supreme  Court,  VI.,  445. 


TOWARDS  BELLIGERENT  STATES. 


549 


in  the  West  Indies  was  a fixed  and  present  intent,  and 
therefore  guilty. 

The  objections  to  the  doctrine  which  makes  everything 
turn  upon  intent  are  well  put  by  Mr.  W.  E.  Hall.  After 
enforcing  them  with  his  usual  learning  and  ability,  he 
suggests  as  an  alternative  principle  that  the  character  of  the 
ship  should  be  the  test.  He  would  lay  upon  the  neutral  the 
duty  of  preventing  the  departure  from  its  ports  of  “ vessels 
built  primarily  for  warlike  use,”  if  they  were  destined  for 
the  service  of  either  belligerent ; while  he  would  leave  un- 
molested “vessels  primarily  fitted  for  commerce.”1  Experts 
can  tell  almost  from  the  laying  of  the  keel  the  difference 
between  the  two  classes  of  ships.  No  doubt  some  commercial 
vessels  can  be  adapted  for  war  with  greater  or  less  ease  ; but 
belligerents  would  do  well  to  submit  to  the  free  sale  and 
issue  of  such  ships  in  consideration  of  the  total  prohibition 
of  the  construction  of  war-vessels  for  their  opponents.  In 
the  same  way  neutrals  would  find  it  advantageous  to 
purchase  freedom  of  commercial  ship-building  and  entire 
immunity  from  belligerent  reproaches  by  the  sacrifice  during 
hostilities  of  their  trade  with  the  contending  powers  in  ships 
of  war.  The  suggested  rule  is  free  from  all  the  perplexities 
connected  with  decision  by  intent,  and  would  involve  less 
interference  with  neutral  ship-building  than  the  British 
Foreign  Enlistment  Act  of  1870,  which  is  administered  with 
vigor  and  success  in  the  present  conflict  between  China  and 
Japan. 

§ 263. 

The  question  is  still  far  from  settlement.  The  old  prin- 
ciples have  been  thoroughly  discredited  and  the  maritime 
powers  have  come  to  no  agreement  upon  new  The  three  rules  of 
ones.  The  three  rules  of  the  Treaty  of  Wash-  Washington  and 
ington  of  1871,  and  the  award  given  by  the  Geneva  Tribunal. 
Geneva  Tribunal  in  the  following  year,  ought  to  have  cleared 
1 Hall,  International  Law,  § 225  and  notes. 


550 


THE  DUTIES  OF  NEUTRAL  STATES 


up  the  difficulty,  but  unfortunately  they  did  nothing  of  the 
kind.  The  limits  of  neutral  liability  for  the  escape  of 
belligerent  vessels  are  not  more  clearly  defined  than  they 
were  before ; and  on  this  and  other  points  the  decision  of 
the  arbitrators,  though  it  settled  the  case  before  them,  has 
not  met  with  general  acceptance  as  containing  desirable 
regulations  for  the  future  conduct  of  belligerents  and  neu- 
trals in  their  mutual  relations. 

By  the  sixth  article  of  the  Treaty  of  Washington,1  the 
arbitrators  appointed  to  settle  the  chief  questions  at  issue 
between  Great  Britain  and  the  United  States  were  to  be 
governed  in  their  decision  by  three  rules  set  forth  in  the 
article  and  the  principles  of  International  Law  not  incon- 
sistent therewith.  Great  Britain  consented  to  be  judged  by 
the  rules  in  question,  though  she  held  that  they  were  not 
part  of  the  law  of  nations  at  the  time  when  the  events  com- 
plained of  took  place  ; and  both  parties  agreed  to  observe 
the  rules  as  between  themselves  in  future  and  to  invite  other 
maritime  powers  to  accede  to  them.  The  three  rules  were 
as  follows : — 

“ A neutral  government  is  bound  : — 

“ First.  To  use  due  diligence  to  prevent  the  fitting  out, 
arming,  or  equipping,  within  its  jurisdiction,  of  any  vessel 
which  it  has  reasonable  ground  to  believe  is  intended  to 
cruise  or  to  carry  on  war  against  a power  with  which  it  is  at 
peace ; and  also  to  use  like  diligence  to  prevent  the  depart- 
ure from  its  jurisdiction  of  any  vessel  intended  to  cruise  or 
carry  on  war  as  above,  such  vessel  having  been  specially 
adapted,  in  whole  or  in  part,  within  such  jurisdiction,  to 
warlike  use. 

“ Secondly.  Not  to  permit  or  suffer  either  belligerent  to 
make  use  of  its  ports  or  waters  as  the  base  of  naval  opera- 
tions against  the  other,  or  for  the  purpose  of  the  renewal  or 
augmentation  of  military  supplies  or  arms,  or  the  recruit- 
ment of  men. 

1 Treaties  of  the  United  States , 481. 


TOWARDS  BELLIGERENT  STATES. 


551 


“Thirdly.  To  exercise  due  diligence  in  its  own  ports  and 
waters  and  as  to  all  persons  within  its  jurisdiction,  to  pre- 
vent any  violation  of  the  foregoing  obligations  and  duties.” 

No  sooner  had  the  treaty  which  contained  these  rules  been 
signed  than  disputes  arose  as  to  the  meaning  of  some  of  the 
expressions  and  clauses  in  them.  The  difficult  question  of 
“ due  diligence  ” gave  rise  to  long  discussions  and  cannot  be 
said  to  have  been  satisfactorily  settled  at  last.  We  have 
already  reproduced  the  various  interpretations  placed  upon 
the  phrase ; 1 and  we  have  also  endeavored  to  indicate  the 
characteristic  features  of  a “ base  of  naval  operations,” 2 as 
to  which  British  and  American  ideas  differed  considerably. 
But  perhaps  the  most  hotly  disputed  point  is  concerned  with 
the  latter  portion  of  the  first  rule,  which  binds  the  neutral 
to  use  due  diligence  to  “prevent  the  departure  from  its  juris- 
diction of  ajiy  vessel  intended  to  cruise  or  carry  on  war  as 
above,  such  vessel  having  been  specially  adapted,  in  whole 
or  in  part,  within  such  jurisdiction,  to  warlike  use.”  Three 
different  interpretations  were  placed  upon  the  words  in  ques- 
tion. Great  Britain  contended  that  they  referred  only  to 
the  original  departure  of  the  peccant  vessel  with  her  sins 
fresh  upon  her,  and  could  not  be  intended  to  impose  upon 
the  government  of  the  injured  neutral  the  obligation  of  seiz- 
ing her  if  she  afterwards  visited  any  of  its  ports  as  a duly 
commissioned  ship  of  war.  Such  a course,  it  was  argued, 
would  be  in  itself  a violation  of  International  Law,  which 
conferred  upon  all  lawful  belligerent  cruisers  immunity  from 
local  jurisdiction  when  visiting  the  ports  of  states  with 
which  their  own  country  was  at  peace.3  The  United  States 
admitted  that  a commission  emanating  from  a recognized 
power  protected  the  vessel  bearing  it  from  all  subsequent 
proceedings  against  her  by  a neutral  whose  neutrality  she 

i See  § 259.  2 See  § 250. 

3 See  British  Case , Pt.  III. ; the  Argument  of  Sir  B.  Palmer  before  the 

Geneva  Tribunal ; and  Reasons  of  Sir  A.  Cockburn  for  Dissenting  from  the 
Award,  148-156 


552 


THE  DUTIES  OF  NEUTRAL  STATES 


liad  violated  ';  but  they  declared  that  this  immunity  did  not 
apply  to  vessels  of  a warring  community,  recognized  as  a 
belligerent,  but  without  recognition  as  a sovereign  state. 
Such  ships  might  be  exempt  from  judicial  process  and  the 
jurisdiction  of  neutral  courts,  but  not  from  the  control  of 
the  neutral  executive,  which  was  bound  to  seize  them  when- 
ever they  entered  its  ports,  if  they  had  been  illegally  fitted 
out,  armed  or  equipped  within  its  jurisdiction,  or  had 
received  therein  any  addition  to  their  effective  power  of 
doing  injury  to  their  foes.1  The  Arbitral  Tribunal  went 
further  than  the  advocates  of  the  United  States,  and  accepted 
their  interpretation  without  the  limitations  they  had  placed 
upon  it.  The  Award  laid  down  that  the  effects  of  a viola- 
tion of  neutrality  are  not  done  away  with  by  any  commission 
which  the  guilty  vessel  may  acquire  from  a belligerent  gov- 
ernment, and  laid  upon  the  injured  neutral  the  duty  of  seiz- 
ing such  vessels  on  any  subsequent  visit  to  her  ports,  even 
though  they  belonged  to  recognized  and  old-established 
sovereign  states.2 

There  can  be  no  doubt  that  as  a general  rule  the  commis- 
sion of  a belligerent  power  exempts  the  ship  which  bears  it 
from  proceedings  against  her  in  the  ports  of  other  states. 
The  decision  of  Chief  Justice  Marshall  in  the  case  of  the 
Exchange  is  decisive  on  this  point.  On  proof  that  the  vessel 
had  been  duly  commissioned  by  Napoleon  I.,  he  declined  to 
try  in  an  American  court  the  legality  of  her  original  seizure 
by  the  French  Government  when  she  was  owned  by  an 
American  citizen  and  lay  in  a Spanish  port.3  But  the  ques- 
tion whether  this  rule  applies  to  vessels  who  have  no  recog- 
nized government  behind  them  to  be  responsible  for  their 
misdeeds,  and  applies  so  far  as  to  shield  them  from  executive 
action  on  the  part  of  the  state  whose  neutrality  they  have 

1 See  American  Case,  Pt.  III.  ; and  the  Argument  of  Mr.  Evarts  before  the 
Geneva  Tribunal. 

2 See  Award  of  the  Geneva  Tribunal , Recitals  4,  5,  6,  10,  14. 

3 Cranch,  Reports  of  U.  S.  Supreme  Court , VII.,  116. 


TOWARDS  BELLIGERENT  STATES. 


553 


violated,  was  a new  one  when  raised  by  the  advocates  of  the 
United  States  in  the  Geneva  Arbitration.  Circumstances 
exactly  like  those  of  the  Alabama  and  her  sister  cruisers  had 
not  arisen  before.  Both  sides  quoted  decisions  in  analogous 
cases,  and  each  was  quick  to  point  out  that  its  opponent’s 
analogies  broke  down  in  some  important  particular.  The 
wide  ruling  of  the  Arbitral  Tribunal  seems  to  have  been 
dictated  more  by  a regard  for  equitable  considerations  than 
by  reference  to  principles  hitherto  accepted  among  nations. 
Its  adoption  w'ould  add  enormously  to  the  burdens  of  neu- 
trality, and  would  probably  bring  about  serious  conflicts 
between  neutral  states  and  belligerents  whose  vessels  were 
seized.  On  the  other  hand,  the  practical  immunity  enjoyed 
under  the  British  interpretation  of  the  law  by  belligerent 
communities  whose  independence  has  not  been  recognized  is 
obviously  unfair.  Other  states  cannot  deal  officially  with 
their  governments  and  hold  them  responsible  for  offences 
committed  by  their  cruisers  ; and  if  the  cruisers  themselves 
cannot  be  touched  when  once  they  have  completed  their 
offence  and  become  fully  commissioned  war-ships,  absolute 
immunity  is  secured  to  them  and  their  principals,  and  no 
remedy  exists  for  a grave  international  wrong.  If  it  is  too 
much  to  say  that  the  rule  suggested  by  the  United  States  is 
law,  we  may  venture  upon  the  assertion  that  it  might  he 
made  law  with  great  advantage. 

The  grave  disagreements  we  have  sketched,  and  others  of 
minor  importance  to  which  we  have  not  alluded,  did  not 
improve  the  chance  of  a general  acceptance  of  the  Three 
Rules  of  the  Treaty  of  Washington.  The  two  powers  most 
immediately  concerned  have  never  been  able  to  settle  the 
terms  of  a joint  note  inviting  others  to  accede  to  them,  and 
since  1876  have  given  up  the  attempt  to  do  so.  The  gov- 
ernments of  Germany  and  Austria  let  it  be  known  beforehand 
that  their  consent  would  be  withheld  ; and  no  state  has 
shown  itself  eager  to  adopt  the  new  formulae.1  It  was  almost 
1 Wharton,  International  Law  of  the  United  States,  § 402  a. 


554 


THE  DUTIES  OF  NEUTRAL  STATES 


impossible  to  separate  the  rules  from  the  interpretation  put 
upon  them  by  the  Arbitrators  ; and  statesmen  felt  that, 
though  the  former  might  be  understood  in  an  acceptable 
sense,  the  latter  imposed  upon  neutrals  impossible  obliga- 
tions, and  would  have  made  neutrality  almost  as  burdensome 
as  war.  The  Institut  de  Droit  International  discussed  the 
question  at  its  sessions  in  1874  and  1875,  and  adopted  at  the 
Hague  in  the  latter  year  a series  of  conclusions  which  em- 
bodied the  principles  of  the  rules  but  considerably  altered 
their  phraseology.1  So  flat  have  they  fallen  that  it  has  been 
doubted  whether  they  bind  the  two  powers  which  originally 
contracted  to  observe  them.2  Instead  of  settling  disputed 
points  they  have  raised  new  difficulties.  The  utmost  that 
can  be  said  for  them  is  that  they,  and  the  events  of  which 
they  formed  a part,  have  roused  neutral  governments  to 
greater  watchfulness  and  activity,  in  order  to  prevent  viola- 
tions of  neutrality  for  which  they  will  assuredly  be  held 
responsible  by  the  injured  belligerent. 


§ 264. 


We  may  now  conclude  our  attempt  to  set  forth  the  duties 
of  neutral  states  towards  belligerent  states ; but  before  we 
~ „„„  leave  the  subject  it  will  be  useful  to  indicate 

govern  me  u'ts'for  * very  briefly  what  are  the  powers  possessed  by 
vindicationofthek-  neutral  governments  for  the  protection  of  their 
neutrality.  neutrality.  They  have  first  the  remedy, by 

diplomatic  complaint.  As  a rule  their  remonstrances  are 
sure  of  a respectful  hearing  ; for  it  is  to  the  interest  of  every 
belligerent  to  keep  on  good  terms  with  the  powers  that  take 
no  part  in  the  war.  If  the  case  is  flagrant  and  the  wrong 
notorious  and  undoubted,  adequate  reparation  will  generally 
be  accorded  in  answer  to  reasonable  demands.  Another 
remedy  which  by  no  means  excludes  the  former,  though 


1 Tableau  General  de  l' Institut  de  Droit  International,  pp.  161-163. 

2 Wharton,  Commentaries  on  American  Law , § 244. 


Howards  belligerent  states. 


555 


quite  independent  of  it,  is  to  be  found  in  administrative 
action,  treading  close  on  the  heels  of  the  wrong,  and  either 
preventing  its  completion  or  inflicting  exemplary  punishment 
on  the  wrong-doer.  Thus,  if  a belligerent  war- vessel  tries 
to  effect  a capture  in  a neutral  port,  the  authorities  may  use 
whatever  force  is  at  their  disposal  for  the  purpose  of  frus- 
trating the  attempt.  And  if  the  aggressor  is  crippled  or 
sunk  in  the  course  of  the  struggle,  her  commander  has  only 
himself  to  thank  for  the  result  of  his  attempt  at  outrage. 
Some  writers  extend  the  power  of  the  neutral  state  beyond 
the  limits  of  its  jurisdiction,  and  allow  it  to  pursue  an 
offending  vessel  on  to  the  high  seas  and  there  deal  with  it  as 
justice  may  demand.1  But  no  clear  authority  for  this  state- 
ment can  be  found  in  usage  or  in  judicial  decisions,  and  in 
principle  it  is  altogether  wrong.  A state  has  a right  to  police 
its  own  waters  ; but  it  has  no  sort  of  right  to  enforce  outside 
them  the  regulations  it  deems  necessary  for  protecting  the 
integrity  of  its  territory.  If  a vessel  which  has  in  any 
way  violated  its  neutrality  manages  to  escape,  it  can  claim 
through  diplomatic  channels  redress  for  the  past  and  respect 
for  the  future.  But  we  submit  that  any  attempt  to  do  on 
the  open  ocean,  where  there  is  no  territorial  jurisdiction,  acts 
which  are  inseparable  from  such  jurisdiction,  is  in  itself  an 
offence  against  the  law  of  nations  which  it  professes  to  vin- 
dicate. The  point  might  have  received  an  authoritative 
decision  had  the  United  States  cruiser  Charleston  caught 
the  Chilian  transport  Etata , when  in  May,  1891,  the  latter 
escaped  from  the  port  of  San  Diego  after  violating  American 
neutrality  by  taking  on  board  therein  a cargo  of  arms.  But 
the  pursuit  was  unsuccessful,  and  the  question  of  right 
remains  where  it  was  before.  It  will  be  solved  in  a sense 
favorable  to  the  claim  to  pursue,  if  the  rules  on  the  subject  of 
territorial  waters  recently  accepted  by  the  Institut  de  Droit 
International  should  ever  receive  the  sanction  of  the  maritime 

1 e.g.  Bluntschli,  Droit  International  Codifie,  § 342  ; Hall,  International 
Law , § 227  ; Woolsey,  International  Law,  § 58. 


556 


THE  DUTIES  OF  NEUTRAL  STATES,  ETC. 


powers.  The  eighth  of  the  Articles  adopted  at  Paris  in 
March,  1894,  declared  that,  in  case  of  an  offence  committed 
within  the  jurisdiction  of  the  territorial  power,  it  might  con- 
tinue on  the  high  seas  a pursuit  commenced  in  its  waters; 
but  the  right  to  follow  and  capture  was  to  cease  if  the  flying 
vessel  gained  a port  of  its  own  country  or  of  a third  power.1 

We  come  lastly  to  the  remedy  by  judicial  process.  The 
neutral  state  has  the  right  of  exercising  jurisdiction  through 
its  Prize  Courts  over  captures  made  by  belligerents  within 
its  dominions,  whether  the  captured  property  remains  from 
the  first  in  the  neutral  waters  where  it  has  been  illegally 
taken,  or  is  brought  hack  to  them  some  time  after  the  cap- 
ture. The  restoration  may  be  made  by  administrative  act, 
but  it  is  generally  more  convenient  that  the  case  should  go 
before  the  neutral  courts  and  be  decided  by  them.  Their 
jurisdiction  extends  also  to  cases  where  the  capturing  vessel 
has  received  either  its  original  equipment  for  war  or  a sub- 
sequent augmentation  of  warlike  force  within  the  neutral’s 
territorial  waters,  and  has  afterwards  taken  a prize  and 
brought  it  into  one  of  the  ports  of  the  injured  power.  This 
is  clearly  set  forth  in  a large  number  of  judicial  decisions, 
the  most  important  of  which  is  that  given  by  Judge  Story  in 
the  case  of  Santissima  Trinidad ,2  when  he  laid  down,  among 
other  propositions,  that  the  neutral’s  jurisdiction  was  limited 
to  captures  made  during  the  cruise  wherein  the  illegal  outfit 
or  augmentation  of  force  took  place.  This,  and  many  other 
questions  connected  with  such  cases,  are  rendered  less  impor- 
tant now  than  formerly  owing  to  the  tendency  of  neutral 
states  in  modern  times  to  exclude  belligerent  prizes  from 
their  ports. 

1 Annuaire  de  I'Institut  de  Droit  International , 1894-1895,  p.  330. 

2 Wheaton,  Reports  of  the  U.  S.  Supreme  Court.,  VII.,  283. 


CHAPTER  IV. 


ORDINARY  NEUTRAL  COMMERCE. 

§ 265. 

We  have  now  to  consider  the  Law  of  Neutrality  in  its 
second  great  division,  which  deals  with  belligerent  states  and 
neutral  individuals.1  In  the  Middle  Ages  the  The  conflict 

. ■ between  belli^er- 

growth  of  trade  forced  commercial  questions  ent  and  neutral 

interests  in  the 

upon  the  attention  ot  rulers  long  before  the  idea  matter  of  trade, 
arose  that  states  as  corporate  bodies  had  any  duties  towards 
one  another  in  the  matter  of  neutrality.  The  belligerent 
dealt  with  neutral  commerce  himself,  and  punished  in  his 
own  courts  violations  of  the  rules  he  laid  down  for  the 
furtherance  of  his  own  interests.  Then,  as  trade  became 
more  important  and  traders  more  influential,  they  began  to 
demand  that  some  respect  should  be  paid  to  them  ; and  after 
the  decay  of  feudalism  and  the  commencement  of  a new  com- 
mercial and  industrial  epoch,  states  arose  whose  policy  it  was 
to  extend  the  immunities  of  neutral  merchants  at  the  expense 
of  belligerent  rights.  For  three  centuries  at  least  trading 
interests  have  grown  steadily  stronger  and  stronger  ; and  the 
result  has  been  a continual  modification  of  the  older  rules, 
and  the  growth  of  a body  of  law,  which  is  a compromise 
between  the  attempt  of  the  belligerent  state  to  cut  off  its 
enemy’s  trade  and  the  attempt  of  the  neutral  individual  to 
trade  unhindered  by  the  war.  Opposing  self-interests  have 
been  the  main  forces  at  work  in  the  development  of  indi- 

1 See  § 248. 

657 


558 


Ordinary  neutral  commerce. 


vidual  neutrality,  just  as  ethical  principles  have  been  the 
chief  elements  in  the  growth  of  state  neutrality.  But  never- 
theless the  rules  which  govern  the  ventures  of  neutral  mer- 
chants and  ship-owners  possess  a clearness  and  symmetry 
which  are  lacking  when  we  turn  to  the  mutual  duties  of 
neutral  and  belligerent  states.  The  difference  is  due  to  the 
fact  that  the  former  have  been  administered  by  Prize  Courts 
and  reduced  to  system  by  trained  jurists,  whereas  the  latter 
are  in  the  main  left  to  he  settled  by  the  ex  parte  arguments 
of  international  controversies  and  the  slow  growth  of  opinion 
among  civilized  peoples. 

Among  the  subjects  which  fall  under  the  head  of  neutrality 
as  it  is  concerned  with  the  rights  and  obligations  of  bellig- 
erent states  and  neutral  individuals,  the  first  place  must  be 
given  to  what  we  have  already  called  Ordinary  Neutral 
Commerce.1  By  these  words  we  mean  commerce  uncompli- 
cated by  any  question  as  to  the  kind  of  service  performed 
by  the  ship  concerned,  or  the  warlike  character  of  the 
goods  conveyed,  or  the  special  circumstances  of  their  port 
of  destination.  Under  this  head,  therefore,  we  have  to  deal 
with  the  restrictions  belligerents  have  endeavored  to  place 
upon  harmless  every-day  trade,  on  the  plea  that  they  must 
be  allowed  to  put  all  possible  stress  upon  a foe,  even  at  the 
expense  of  neutral  interests,  and  the  modifications  contended 
for  by  neutrals  on  the  principle  that  they  must  be  permitted 
to  carry  on  their  commerce  unhindered  by  a war  in  which 
they  are  not  concerned.  The  special  character  of  sea-borne 
commerce  often  renders  it  impossible  to  separate  neutral  and 
belligerent  interests  in  it,  and  strike  at  an  enemy  without 
injuring  a friend.  On  land  neutral  goods  in  belligerent 
territory  are  subject  to  the  ordinary  rules  of  warfare.  Their 
situation  within  the  enemy’s  dominions  is  held  to  impress  an 
enemy  character  upon  them.  But  at  sea,  where  there  is  no 
territorial  jurisdiction  to  simplify  matters,  enemies’  goods  are 
often  found  on  neutral  ships,  and  neutral  goods  on  enemies’ 

i See  § 248. 


ORDINARY  NEUTRAL  COMMERCE. 


559 


ships.  It  is  necessary,  therefore,  to  settle  in  each  case 
whether  the  element  of  neutrality  or  the  element  of  bellig- 
erency shall  prevail.  Two  principles  have  found  favor  at 
various  times  as  rough  attempts  to  provide  a workable  com- 
promise between  the  demands  of  warring  navies  and  the 
claims  of  neutral  commerce.  The  first  lays  down  that  the 
liability  of  the  goods  to  capture  shall  be  determined  by 
the  character  of  the  owner,  while  the  second  declares  that 
the  character  of  the  vehicle  shall  decide.  These  two  prin- 
ciples, taken  either  separately  or  in  combination,  will  be 
found  to  lie  at  the  bottom  of  all  the  practical  rules  that  have 
ever  been  enforced,  since  International  Law  became  strong 
enough  to  impose  rules  of  any  kind  upon  indiscriminate 
robbery. 

§ 266. 

The  Consolato  del  Mare,  which  was  the  greatest  of  the 
mediaeval  maritime  codes,1  declared  that  if  the  captured  vessel 
was  neutral  and  the  cargo  enemy  the  captor 

. The  history  of  the 

might  compel  the  vessel  to  carry  the  cargo  to  a rules  of  ordinary 

° . ir-ii  maritime  capture. 

place  of  safety,  paying  her  the  freight  she  was 
to  have  received  from  the  owners  of  the  goods.  If,  on  the 
other  hand,  the  vessel  was  enemy  and  the  cargo  neutral,  the 
owners  of  the  cargo  were  at  liberty  to  ransom  the  vessel  from 
the  captor  and  proceed  on  their  voyage  ; and  if  they  refused 
to  do  so,  the  captor  might  send  the  vessel  to  a port  of  his 
own  country  and  make  the  owners  of  the  cargo  pay  the 
freight  they  would  have  paid  to  the  original  belligerent 
owner  of  the  vessel.  But  if  they  were  willing  to  make 
satisfactory  arrangements  about  the  ship  and  the  captor 
refused,  they  could  claim  from  him  compensation  for  damage 
and  he  could  claim  no  freight  from  them.2  Upon  these  pro- 
visions the  whole  fabric  of  the  law  of  capture  at  sea  was 
reared.  It  proceeded  upon  the  principle  that  the  fate  of  the 
goods  depended  upon  the  quality  of  the  owner.  If  he  were 

1 See  § 29.  2 Pardessus,  Us  et  Coutumes  de  la  Mer , II.,  304. 


560 


ORDINARY  NEUTRAL  COMMERCE. 


an  enemy,  they  were  subject  to  capture,  even  though  they 
might  be  found  in  a neutral  vehicle  ; if  he  were  a neutral, 
they  were  free  from  capture,  even  though  they  might  be 
found  in  an  enemy  vehicle.  There  can  be  no  doubt  that  the 
rules  of  the  Consolato  were  generally  adopted  in  the  Europe 
of  the  Reformation  and  the  Renascence,  though  abnormal 
usages  sometimes  showed  themselves.  It  was,  for  instance, 
made  matter  of  serious  discussion  by  belligerents  whether 
neutrals  should  be  allowed  to  trade  at  all  with  the  enemy, 
and  the  doctrine  that  the  neutral  ship  was  tainted  by  the 
enemy  cargo,  and  therefore  subject  to  capture  along  with  the 
hostile  goods  it  carried,  was  occasionally  put  into  practice. 
But  on  the  whole  states  followed  the  plain  and  simple  plan 
of  capturing  enemy  goods  and  letting  neutral  goods  go  free, 
regardless  of  the  nationality  of  the  vessel  in  which  they  were 
found.  And  further,  as  civilization  and  trade  advanced  the 
obligation  of  bringing  captured  vessels  in  for  adjudication 
by  competent  Prize  Courts  was  universally  admitted  ; and 
it  was  held  that  the  courts  must  both  condemn  the  enemy 
goods  while  they  released  the  neutral  vehicle  and  paid  freight 
to  its  owners,  and  also  condemn  the  enemy  vehicle  while  they 
released  the  neutral  goods.  This  did  away  with  that  portion 
of  the  code  of  maritime  capture  contained  in  the  Consolato 
which  deals  with  the  ransom  of  a belligerent  prize  by  the 
neutral  owners  of  her  innocent  cargo  ; but  in  other  respects 
the  code  remained  intact  and  became  part  of  the  common 
law  of  nations.  Grotius  speaks  with  approval  of  it  and 
cites  numerous  instances  of  its  application.1  He  also  argues 
against  the  seizure  of  neutral  goods  found  in  enemies’  ships, 
on  the  ground  that  their  situation  ought  not  to  be  held  to 
condemn  them,  but  at  most  to  indicate  a presumption  of 
hostile  character  which  might  be  rebutted  by  proof  that  they 
were  really  neutral.2  Bynkershoek  gives  utterance  to  the 
same  opinions  in  a more  pronounced  manner,3  and  Vattel  is 

1 Be  Jure  Belli  ac  Pacts,  III.,  I.,  V.,  note.  2 Ibid.,  III.,  VT.,  VI. 

3 Qtiaestiones  Juris  Publici,  I.,  13,  14. 


ORDINARY  NEUTRAL  COMMERCE. 


561 


equally  emphatic.1  It  would  be  easy  to  lengthen  the  chain 
of  authorities,  were  it  necessary  to  do  so.  In  fact  all  the 
great  publicists  who  touch  upon  the  question  up  to  the  middle 
of  the  eighteenth  century  agree  with  those  we  have  cited  ; 
and  their  modern  successors  who  attempt  to  prove  that  the 
practice  of  capturing  enemy  goods  under  a neutral  flag  was 
a usurpation  and  an  outrage  are  obliged  to  base  their  reason- 
ing upon  a loi  primitif , which  resides  chiefly  in  their  own 
breasts,  and  a number  of  selected  treaties,  which  stipulate 
for  the  observance  of  rules  other  than  those  in  general  use 
between  nations.2  But  the  controversies  here  glanced  at  are 
really  ancient  history.  Since  the  acceptance  of  the  Declara- 
tion of  Paris  in  1856  they  have  had  no  bearing  upon  practical 
affairs.  That  great  international  instrument  closed  a chapter 
in  the  history  of  maritime  law  ; and  all  we  need  do  is  to 
glance  at  the  record  in  order  that  we  may  be  able  to  under- 
stand our  present  position.  We  have  shown  how  the  rules 
of  the  Consolato  del  Mare  became  the  law  of  capture  at  sea 
in  time  of  war.  It  now  remains  for  us  to  give  a rapid  sketch 
of  the  system  which  first  rivalled  and  then  partially  sup- 
planted them  ; and  when  this  has  been  done  we  shall  be  in 
position  to  understand  the  maritime  jurisprudence  of  the 
modern  world. 

In  order  to  gain  general  acceptance,  the  Consolato  had,  as 
we  have  seen,  to  struggle  against  harsher  rules ; but  when 
its  position  was  secured,  an  alternative  arose  based  upon  a 
principle  deemed  to  be  more  favorable  to  neutral  commerce. 
It  was  suggested  that  the  liability  of  goods  to  capture  should 
be  determined  by  the  character  of  the  vessel  which  carried 
them.  If  she  were  neutral,  they  were  to  go  free,  even  though 
they  belonged  to  an  enemy;  but  if  she  were  enemy,  they 
were  to  be  condemned,  even  though  they  belonged  to  a neu- 
tral. The  new  doctrine  was  set  forth  in  the  twin  maxims, 

1 Droit  des  Gens,  III.,  §§  115,  116. 

2 e g.  Ortolan,  Diplomatic  de  la  Mer,  Liv.  III.,  Ch.  Y.  ; Hautefeuille,  Droit 
et  Devoirs  des  Nations  Neutres , Tit.  X.,  Ch.  I.,  Sec.  II. 


562 


ORDINARY  NEUTRAL  COMMERCE. 


Free  ships , free  goods , and  Enemy  ships , enemy  goods.  It 
fitted  in  with  the  extreme  ideas  on  the  subject  of  the  immu- 
nity of  the  neutral  flag  and  the  exterritoriality  of  the  neu- 
tral vessel,1  which  found  favor  with  a certain  school  of 
continental  publicists.  Some  of  them  even  went  beyond  it 
and  declared  that  neutral  goods  on  enemy  ships  were  free,  as 
well  as  enemy  goods  on  neutral  ships.2  But  the  Dutch,  its 
first  advocates,  adopted  it  on  grounds  of  self-interest  and 
commercial  utility.  They  recognized  to  the  full  that  it  was 
a new  principle,  which  must  be  applied  by  special  agreement 
if  their  commerce  was  to  gain  the  benefit  of  it.  The  greater 
part  of  the  carrying  trade  of  Europe  was  in  their  hands 
during  the  seventeenth  century,  and  the  object  they  had  in 
view  was  to  obtain  freedom  from  molestation  for  belligerent 
commerce  entrusted  to  their  care.  But,  in  order  to  gain  what 
they  desired,  they  were  obliged  to  purchase  safety  for  enemy 
merchandise  beneath  a neutral  flag  by  conceding  to  bellig- 
erents a right  to  capture  neutral  goods  beneath  an  enemy 
flag.  Thus  we  find  a long  series  of  treaties  stipulating  for 
the  adoption  of  the  principle  that  the  character  of  the  vehicle 
settles  the  fate  of  the  goods,  unless  indeed  contraband  of  war 
be  found  on  board  a friendly  vessel,  in  which  case  it  is  not 
protected  by  the  neutral  flag.  The  first  was  made  between 
the  United  Provinces  and  Spain  in  1650, 3 and  it  was  followed 
at  irregular  intervals  by  many  others.4  The  United  States 
from  th^  commencement  of  their  separate  national  existence 
showed  their  willingness  to  embody  the  newer  doctrine  in 
their  formal  international  agreements.  It  occurs  in  the 
treaties  of  1778  and  1800  with  France,  in  the  treaty  of  1782 
with  the  Dutch  and  in  the  treaty  of  1783  with  Sweden.5 
The  treaties  of  1785  with  Prussia  and  1795  with  Spain  go 
still  further  and  stipulate  for  the  rule  Free  ships , free  goods 

1 See  § 120. 

2 Cf.  Hiibner,  De  la  Saisie  aes  B&timens  Neutres  ; G.  F.  de  Martens,  Precis, 
Liv.  VIII.,  Ch.  VII.,  § 316. 

3 Dumont,  Corps  Diplomatique,  Vol.  VI.,  Pt.  I.,  p.  571. 

4 Manning,  Law  of  Nations  (Amos’s  ed.),  Bk.  V.,  Ch.  VI. 

6 Treaties  of  the  United  States,  pp.  301,  303,  326,  752,  753,  1044,  1046. 


ORDINARY  NEUTRAL  COMMERCE. 


563 


without  the  corresponding  rule  Enemy  ships , enemy  goods; 
but  in  1799,  when  a new  treaty  was  negotiated  with  the 
former  power,  the  previous  agreement  was  replaced  by  a 
promise  to  observe  “the  principles  and  rules  of  the  law  of 
nations  generally  acknowledged,”  and  in  1819  the  obligation 
entered  into  with  Spain  was  confined  to  cases  where  reci- 
procity was  observed  by  neutral  powers  the  goods  of  whose 
subjects  were  spared.1  A complete  return  to  the  original  rule 
is  found  in  the  treaty  with  Great  Britain  of  1794,  which 
expressly  stated  that  the  property  of  an  enemy  found  on 
board  a neutral  vessel  should  be  regarded  as  good  prize  of 
war.2  It  is  evident  from  these  examples  that  the  diplomatic 
polic}r  of  the  United  States  has  not  been  consistent.  On  the 
whole  it  has  inclined  strongly  towards  the  freedom  of  enemy 
goods  under  the  neutral  flag ; but  in  recent  times  the  treaties 
have  contained  a proviso  that  the  contracting  parties  will 
give  the  benefit  of  this  rule  only  to  those  neutrals  who 
govern  their  own  practice  by  it  when  they  are  at  war.3  Yet 
American  jurists  have  always  laid  down  that  in  the  absence 
of  treaty  stipulations  the  old  rule  applies.  Kent  says  of  the 
agreements  that  free  ships  should  make  free  goods,  that  such 
provisions  “ are  to  be  considered  as  resting  on  conventional 
law  merely  and  as  exceptions  to  the  operation  of  the  general 
rule ; ” 4 and  Jefferson  wrote  in  1793,  “ I believe  it  cannot  be 
doubted  that  by  the  general  law  of  nations  the  goods  of  a 
friend  found  in  the  vessel  of  an  enemy  are  free,  and  the  goods 
of  an  enemy  found  in  the  vessel  of  a friend  are  lawful  prize.”  5 
The  decisions  of  the  Supreme  Court  were  to  the  same  effect. 
The  attitude  of  the  United  States,  therefore,  has  been  that 
of  a power  which  admitted  the  obligation  of  the  old  rules 
where  they  were  not  overridden  by  special  agreement,  but 

1 Treaties  of  the  United  States,  pp.  902,  911,  1010,  1011,  1020,  1021. 

2 Ibid.,  p.  389. 

3 e.g.  The  Treaty  of  1887  with  Peru,  Treaties  of  the  United  States,  p.  1196. 

4 Commentaries  (Abdy’s  ed.),  Ch.  VIII.,  p.  342. 

5 Wharton,  International  Law  of  the  United  States,  § 342. 


564 


ORDINARY  NEUTRAL  COMMERCE. 


desired  to  see  them  superseded  by  the  more  modern  doctrine. 
Great  Britain,  on  the  other  hand,  not  only  maintained  the 
ancient  law  of  maritime  capture,  but  held  it  to  he  in  itself 
just  and  satisfactory.  She  made  very  few  treaties  setting 
it  aside  in  favor  of  the  principle  that  the  flag  covers  the 
cargo,  and  took  the  first  opportunity  of  getting  rid  of  any 
engagement  of  the  kind  into  which  circumstances  had  com- 
pelled her  to  enter.  Her  insistence  upon  the  system  of  the 
Consolato  del  Mare  brought  upon  her  a great  deal  of  odium, 
especially  from  the  statesmen  and  publicists  of  the  continent 
of  Europe.  Her  writers  retorted  with  vigor  and  effect ; hut 
the  controversy  lost  its  practical  importance  when  in  1856 
the  British  Government  signed  the  Declaration  of  Paris,  and 
accepted  thereby  the  rule  Free  ships , free  goods  without  the 
corollary  Enemy  ships , enemy  goods. 

Hitherto  we  have  placed  the  principle  of  the  character  of 
the  vehicle  in  sharp  opposition  to  the  principle  of  the  owner- 
ship of  the  goods,  as  a means  of  determining  their  liability 
to  capture.  But  it  is  quite  possible  to  combine  the  two,  and 
take  as  a guide  to  practice  that  part  of  each  which  is  most 
unfavorable  to  neutrals  or  that  part  which  is  most  favorable 
to  them.  If  we  follow  the  principle  of  ownership  when  it 
bears  hardly  on  neutral  trade,  we  arrive  at  the  rule  that  the 
goods  of  an  enemy  on  board  the  ship  of  a friend  are  good 
prize  ; and,  if  we  do  the  same  with  the  principle  of  the  nation- 
ality of  the  vessel,  we  obtain  the  rule  that  the  goods  of  a 
friend  on  board  the  ship  of  an  enemy  are  good  prize.  Com- 
bining the  two  we  reach  the  severe  conclusion  that  Enemies' 
goods  in  neutral  ships  and  neutral  goods  in  enemies'  ships  are 
liable  to  capture.  On  the  other  hand,  if  we  take  that  portion 
of  the  operation  of  each  of  our  two  principles  which  is  most 
favorable  to  neutral  trade,  they  work  out  into  the  rule  that 
Neutral  goods  in  enemies'  ships  and  enemies'  goods  in  neutral 
ships  are  not  liable  to  capture.  We  see  then  that  neutrals  may 
be  subjected  to  a combination  of  the  more  severe  or  the  more 
lenient  portions  of  each  of  the  two  main  doctrines  as  to  mari- 


ORDINARY  NEUTRAL  COMMERCE. 


565 


time  capture.  The  harsher  practice  was  followed  by  France 
in  the  sixteenth  and  seventeenth  centuries,  though  sometimes 
she  seems  to  have  fallen  back  upon  the  rules  of  the  Consolato, 
and  in  the  latter  part  of  the  period  she  bound  herself  by 
several  treaties  to  adopt  towards  the  co-signatory  powers  the 
principle  of  the  freedom  of  hostile  property  under  the  neutral 
flag.  But  when  Louis  XIV.  was  at  the  height  of  his  power 
he  made  the  usual  French  practice  harsher  still  by  the  famous 
Marine  Ordinance  of  1681,  which  is  called  by  Azuni  ule 
chef-d’oeuvre  de  la  legislation  etablie  par  cet  incomparable 
monarque.”1  It  not  only  condemned  neutral  goods  carried 
in  enemies’  ships,  but  also  declared  that  neutral  ships  were 
liable  to  condemnation  for  carrying  enemies’  goods.  The 
doctrine  that  enemy  property  infected  with  its  hostile  char- 
acter whatever  neutral  property  it  was  brought  into  contact 
with  was  followed  by  France  till  1744,  and  by  Spain  from 
1704  till  the  former  date,  when  a French  Ordinance  gave 
freedom  from  capture  to  neutral  vessels  laden  with  enemies’ 
goods  and  the  Spanish  Government  changed  its  naval  policy 
in  accord  with  its  powerful  ally.  The  varying  needs  and 
circumstances  of  the  great  maritime  struggle  with  England 
caused  the  French  rules  of  capture  at  sea  to  vary  with 
bewildering  rapidity  in  the  latter  half  of  the  eighteenth 
century  and  the  first  years  of  the  nineteenth.  The  termina- 
tion of  the  conflict  left  France  with  her  traditional  policy  of 
capturing  neutral  goods  in  enemies’  ships,  without  the  added 
severity  of  the  condemnation  of  neutral  vessels  for  carrying 
enemies’  goods,  while  England  still  adhered  to  the  old  practice 
of  making  prize  of  enemies’  goods  under  a neutral  flag.  Thus 
when  in  1854  England  and  France  were  allied  against  Russia 
there  seemed  no  escape  for  neutral  trade.  But  the  two 
powers  felt  that  it  was  neither  desirable  nor  possible  to  revive 
the  severities  of  a bygone  age,  and  agreed  that  during  the 
war  they  would  not  capture  enemies’  goods  in  neutral  vessels 
or  neutral  goods  in  enemies’  vessels. 

1 Droit  Maritime  de  V Europe,  Vol.  I.,  Ch.  III.,  Art.  XIV. 


566 


ORDINARY  NEUTRAL  COMMERCE. 


This  brings  us  to  a combination  of  the  more  favorable 
aspects  of  the  two  great  doctrines  on  the  subject  of  maritime 
capture.  An  attempt  was  made  in  1752,  by  the  Prussian 
commissioners  who  reported  to  Frederick  the  Great  on  what 
is  known  as  the  Silesian  Loan  Controversy,1  to  show  that  the 
capture  of  enemies’  goods  on  neutral  vessels  was  contrary  to 
the  law  of  nations.2  But  their  arguments  were  extremely 
weak,  and  it  was  admitted  on  all  sides  that  the  British  reply 
shattered  their  case  to  pieces.3 *  The  Armed  Neutralities  of 
1780  and  1800  endeavored  to  establish  the  rule  of  Free  ships, 
free  goods  without  the  logical  accompaniment  of  Enemy  ships, 
enemy  goods.11  The  principles  of  the  first  Armed  Neutrality 
had  been  accepted  by  all  the  chief  continental  powers  when 
the  peace  of  1783  put  an  end  for  a time  to  the  application  of 
any  rules  of  warfare  at  sea.  But  hardly  had  the  French 
Revolution  initiated  the  next  great  cycle  of  European  wars, 
when  Europe  made  haste  to  abandon  the  maritime  code  to 
which  its  states  had  pledged  themselves  a few  years  before. 
Again,  however,  the  naval  preponderance  of  Great  Britain, 
and  the  severity  with  which  she  used  it  in  the  matter  of 
colonial  trade,  raised  a feeling  of  jealous  hostility  against 
her.  Neutral  states  found  that  their  commerce  did  not  pros- 
per as  fully  as  they  had  hoped  , and  in  1800  Russia  headed 
a movement  which  had  for  its  object  to  cripple  the  principal 
maritime  belligerent  by  reviving  the  Armed  Neutrality  of 
twenty  years  before.  The  Baltic  powers  joined  the  league  ; 
but  within  a few  months  it  was  broken  up  owing  to  the 
death  of  the  Emperor  Paul  and  the  vigorous  action  of  the 
British  Government.5  Then  followed  a period  of  confusion. 
Every  European  power  was  drawn  into  the  conflict  at  one 
time  or  another,  and  some  were  at  war  with  scarcely  any 
intermission  till  the  general  peace  of  1815.  The  signatories 

1 See  § 198.  2 C.  de  Martens,  Causes  Celebres,  II.,  cause  premiere. 

3 Manning,  Law  of  Nations  (Amos’s  ed.),  Bk.  V.,  Ch.  VI.,  § 2. 

4 C.  de  Martens,  Becueil , I.,  193,  194  and  II.,  215-219. 

6 Wheaton,  History  of  the  Law  of  Nations,  Pt.  III.,  §§  14-20. 


ORDINARY  NEUTRAL  COMMERCE.  567 

of  the  Armed  Neutrality  trampled  as  belligerents  upon  the 
doctrines  they  had  championed  as  neutrals  ; while  Great 
Britain  and  France  vied  with  one  another  in  attacks  upon 
innocent  commerce,  each  justifying  its  severities  on  the  plea 
that  they  were  adopted  in  retaliation  for  illegal  acts  com- 
mitted by  the  other.1  At  the  end  of  the  struggle  no  definite 
code  of  maritime  capture  had  received  universal  acceptance. 
It  was  left  for  peaceful  agreement  to  bring  about  in  another 
generation  what  force  had  failed  to  effect  in  the  great  world- 
conflict  which  centred  round  Revolutionary  and  Napoleonic 
France. 


§ 267. 

We  have  just  seen  how  the  states  who  were  allied  against 
Russia  in  the  Crimean  War  pledged  themselves  at  its  com- 
mencement tO  act  throughout  it  On  the  prin-  The  Declaration 
ciple  that  they  would  capture  neither  the  goods  ofParis- 
of  an  enemy  in  the  vessel  of  a friend  nor  the  goods  of  a 
friend  in  the  vessel  of  an  enemy,  reserving,  however,  for  the 
operation  of  the  ordinary  law  cases  of  carrying  contraband 
or  attempting  to  run  blockade.  At  the  close  of  the  war  the 
powers  assembled  in  conference  at  Paris  agreed  upon  a Dec- 
laration concerning  Maritime  Law,  which  must  not  be  con- 
founded with  the  Treaty  of  Paris  though  it  was  drawn  up 
and  signed  by  the  same  plenipotentiaries.  It  was  adopted 
on  April  16,  1856,  and  its  enactments  are  contained  in  the 
four  following  articles  : — 

1.  Privateering  is  and  remains  abolished. 

2.  The  neutral  flag  covers  enemy’s  goods  with  the  excep- 
tion of  contraband  of  war. 

3.  Neutral  goods,  with  the  exception  of  contraband  of 
war,  are  not  liable  to  capture  under  the  enemy’s  flag. 

4.  Blockades  in  order  to  be  binding  must  be  effective, 


1 Manning,  Law  of  Nations  (Amos’s  ed.),  Bk.  V.,  Chs.  VI.,  X.,  XI. 


568 


ORDINARY  NEUTRAL  COMMERCE. 


that  is  to  say,  maintained  by  a force  sufficient  really  to  pre- 
vent access  to  the  coast  of  the  enemy.1 

Great  Britain,  France,  Austria,  Prussia,  Russia,  Sardinia 
and  Turkey  were  the  original  signatory  powers.  They 
bound  themselves  “ to  bring  the  present  Declaration  to  the 
knowledge  of  the  states  which  have  not  taken  part  in  the 
Congress  of  Paris,  and  to  invite  them  to  accede  to  it.” 
The  invitation  has  been  favorably  received  by  nearly  all  the 
members  of  the  family  of  nations  ; but  a little  group,  the 
most  important  of  which  are  the  United  States,  Spain,  Mex- 
ico, Venezuela  and  China,  have  declined  it.  The  situation 
created  by  their  refusal  has  been  already  discussed.2  All 
we  need  say  here  is  that  every  war  which  passes  without  an 
infringement  of  the  Declaration  gives  it  greater  authority. 
Since  1856  civilized  belligerents  have  never  resorted  to  the 
practices  it  was  meant  to  supersede.  Continuous  observance 
of  its  provisions  must  make  it  in  time  a part  of  the  common 
law  of  nations,  even  if  the  express  consent  of  a few  states  is 
still  withheld. 

The  first  article  of  the  Declaration  of  Paris  deals  with  a 
subject  we  have  already  considered,3  and  the  fourth  is  con- 
cerned with  a matter  which  will  come  up  for  consideration 
in  the  next  chapter.4  But  the  second  and  third  articles  have 
a most  important  bearing  upon  the  question  under  discussion 
at  the  present  moment.  They  give  the  sanction  of  general 
agreement  to  the  principle  that  free  ships  make  free  goods 
without  the  usual  corollary  that  enemy  ships  make  enemy 
goods.  The  adhesion  of  Great  Britain  to  this  agreement 
marks  the  complete  victory  of  commercial  considerations 
over  the  rules  of  the  Consolato  del  Mare.  She  had  stood 
out  long  for  the  older  and  severer  practice  ; but  in  the  end 
she  saw  that  her  position  as  a great  trading  nation,  disposed 
in  the  main  to  peaceful  courses  and  therefore  likely  to  be 

1 Wharton,  International  Law  of  the  United  States,  § 342  ; Annual  Regis- 
ter for  1856,  p.  221.  2 See  § 63.  3 See  § 223.  * See  §§  269, 272. 


ORDINARY  NEUTRAL  COMMERCE. 


569 


neutral  in  subsequent  wars,  rendered  it  advisable  for  her  to 
accept  provisions  under  which  her  commerce  would  gain 
immensely  as  long  as  she  Avas  not  a belligerent.  The  vast 
growth  of  her  carrying  trade  since  1856  has  justified  the 
foresight  of  her  statesmen,  though  we  have  seen  reason  to 
believe  that  her  interests  would  be  served  more  effectually,  if 
she  would  go  further  and  assent  to  the  total  abolition  of  the 
capture  of  private  property  at  sea  in  time  of  war,  with  the 
usual  exceptions  against  contraband,  blockade-running  and 
unneutral  service.1  None  of  the  powers  which  refused  to 
sign  the  Declaration  objected  to  its  second  and  third  articles. 
Their  action  was  caused  by  an  unwillingness  to  surrender 
the  right  of  employing  privateers  as  long  as  private  property 
was  still  liable  to  the  depredations  of  hostile  cruisers.  Those 
of  them  who  have  been  engaged  in  war  since  1856  have 
respected  enemy  goods  in  neutral  vessels  as  well  as  neutral 
goods  in  enemy  vessels  ; and  in  the  great  conflict  between 
North  and  South  in  the  United  States  both  parties  agreed 
to  observe  all  the  articles  of  the  Declaration  except  the 
first,  and  did  in  fact  observe  them  all. 

Enemy  property  in  enemy  ships  is  still  subject  to  maritime 
capture.  Its  freedom  from  molestation  under  the  flag  of  a 
friend  is  a concession  made  to  neutrals  ; and  in  respect  of  it 
two  questions  have  been  raised.  The  first  asks  Avhether  bellig- 
erents who  have  signed  the  Declaration  of  Paris  are  bound 
to  give  the  benefit  of  it  to  neutrals  who  have  refused  their  sig- 
natures. We  may  reply  that  such  a privilege  can  hardly  be 
claimed  as  a right.  The  last  clause  of  the  Declaration  con- 
tained a proviso  that  “it  is  not  and  shall  not  be  binding 
except  between  those  powers  who  have  acceded  or  shall 
accede  to  it.”  In  so  far,  therefore,  as  the  rules  it  embodies 
derive  their  validity  from  express  consent,  it  is  clear  that 
those  Avho  have  failed  to  signify  their  formal  adhesion  to 
them  cannot  demand  to  be  treated  as  if  it  had  been  given. 
But  whatever  force  these  rules  may  obtain  from  continual 
observance  throughout  several  decades  belongs  to  them 

1 See  §§  216,  217. 


570 


ORDINARY  NEUTRAL  COMMERCE]. 


apart  from  convention  and  applies  to  all  states  alike.  Non- 
signatory neutrals,  who  have  themselves  when  belligerents 
acted  upon  the  principle  that  the  flag  covers  the  cargo, 
would  have  reason  to  feel  aggrieved  should  a power  at  war 
make  the  fact  that  they  have  not  acceded  to  the  Declaration 
an  excuse  for  depriving  their  commerce  of  the  protection  it 
affords.  In  the  Franco-German  war  of  1870-1871  both  sides 
applied  its  principles  to  the  property  of  American  and  Spanish 
subjects,  though  neither  the  United  States  nor  Spain  have 
signed  it.  A similar  answer  must  be  given  to  the  further 
inquiry  whether,  when  one  belligerent  has  signed  the  Decla- 
ration of  Paris  and  the  other  has  not,  the  former  is  bound  to 
act  upon  it  in  dealing  with  neutrals  whose  governments  have 
acceded  to  it.  There  is  room  for  doubt  if  we  confine  our- 
selves to  the  mere  words  of  the  document ; but  when  we 
come  to  examine  practice  we  find  a strong  tendency  in  favor 
of  the  more  liberal  interpretation.  When  England  and 
France  were  at  war  with  China,  a non-signatory  power,  in 
1860,  they  applied  the  second  and  third  articles  of  the  Dec- 
laration to  neutral  trade ; and  Chili  and  Peru  did  the  same 
when  they  were  allied  against  Spain  in  1885. 1 Indeed  it  is 
far  more  likely  that  the  belligerent  who  had  not  acceded  to 
the  Declaration  would  be  induced  to  observe  its  rules  than 
that  the  belligerent  who  had  acceded  to  them  would  feel 
free  to  ignore  them.  The  present  conflict  in  Eastern  Asia 
affords  an  apt  illustration.  As  far  as  it  has  gone  at  present 
(October,  1894)  China,  the  non-signatory  power,  has  made 
no  attempt  to  capture  Japanese  goods  under  a neutral  flag 
or  neutral  goods  under  a Japanese  flag,  while  Japan,  the  sig- 
natory power,  has  shown  no  sign  of  a wish  to  ignore  its  obli- 
gations towards  neutrals  on  the  plea  that  they  are  not  shared 
by  China.  The  notion  of  a return  to  the  old  order  is  an  idle 
dream.  Those  who  entertain  it  have  failed  to  grasp  either 
the  power  of  modern  commerce  or  the  strength  of  the  moral 
ideas  that  tend  to  restrict  the  destructiveness  of  warfare. 

1 Twiss,  Belligerent  Bight  on  the  High  Seas,  p.  8. 


ORDINARY  NEUTRAL  COMMERCE. 


571 


What  the  pressure  of  neutral  interests  was  able  to  obtain  in 
1856  it  will  be  able  to  retain  in  future  emergencies.  We 
may  adopt  with  confidence  the  view  of  one  of  the  greatest 
of  modern  authorities  on  naval  warfare,  and  hold  that  “ the 
principle  that  the  flag  covers  the  cargo  is  forever  secured.”  1 


§ 268. 

We  may  confidently  believe  that  innocent  commerce  will 
in  future  be  safe  in  neutral  vessels ; but  there  is  much  room 
for  doubt  with  regard  to  the  acceptance  of 

. . „ n . The  claim  that 

another  claim  sometimes  put  forward  by  neu-  neutral  vessels 

. . ^ under  convoy  are 

tral  states.  They  are  inclined  to  demand  that  exempt  from 

^ ci  belligerent  search. 

their  merchant  vessels  shall  be  free  from  bel- 
ligerent search  when  under  the  escort  of  a vessel  of  war  of 
their  own  country,  whose  commander  is  willing  to  pledge 
his  word  that  they  have  not  rendered  themselves  liable  to 
capture  either  by  the  nature  of  their  destination  or  the 
character  of  any  persons  or  goods  they  may  be  carrying. 
The  first  attempt  to  defeat  in  this  way  the  ordinary  bel- 
ligerent right  of  search2  was  made  by  Sweden  in  1658. 
Peace  supervened  in  a few  months,  and  the  question  slum- 
bered in  consequence.  It  was  not  seriously  raised  again  till 
the  latter  half  of  the  eighteenth  century,  when  the  conduct 
of  the  Dutch  roused  it  to  vigorous  life.  As  neutrals  they 
had  claimed  for  their  merchantmen  exemption  from  bel- 
ligerent search  when  under  the  convoy  of  their  ships  of  war  ; 
and  therefore  as  belligerents  they  were  bound  to  grant  to 
others  what  they  had  demanded  for  themselves.  Accord- 
ingly in  January,  1781,  they  ordered  their  cruisers  to  refrain 
from  searching  neutral  ships  under  convoy,  if  the  commander 
of  the  convoying  vessel  declared  them  innocent  of  offence.3 
Soon  after  a number  of  powers  made  mutual  concessions  of 


1 Mahan,  Influence  of  Sea  Power  upon  History,  Ch.  I.,  p.  84. 

2 See  § 210. 

8 Manning,  Law  of  Nations  (Amos’s  ed.),  Bk.  V.,  Ch.  XI. 


572 


ORDINARY  NEUTRAL  COMMERCE. 


the  privilege  by  special  treaty  stipulations.  The  United 
States  were  among  the  foremost.  Between  1782  and  1800 
they  agreed  to  the  insertion  of  the  provision  under  considera- 
tion in  no  less  than  six  treaties.1  They  have  continued  the 
same  diplomatic  policy  up  to  the  present  time  ; and  the 
executive  department  of  their  government  has  embodied  it 
in  the  instructions  issued  to  their  naval  officers,  who  are 
ordered  not  to  permit  ships  under  their  convoy  to  be  searched 
by  belligerent  cruisers.2  But,  nevertheless,  American  writers 
and  jurists  have  held  with  singular  unanimity  that,  though 
belligerents  may  by  treaty  contract  themselves  out  of  their 
common  law  right  of  visit  and  search,  they  cannot  be  com- 
pelled in  the  absence  of  such  agreement  to  take  the  word 
of  a neutral  officer  in  lieu  of  the  evidence  of  their  own 
senses.3 4  This  is  the  British  view,  and  the  practice  of  the 
British  Government  has  always  been  based  upon  it.  Great 
Britain  declined  to  enter  into  any  of  the  agreements  on  the 
subject  of  convoy  which  were  so  common  at  the  end  of  the 
eighteenth  century,  and  insisted  upon  the  full  exercise  of 
her  belligerent  right.  This  course  of  conduct  brought  her 
into  sharp  collision  with  some  of  the  neutral  states.  The 
most  important  of  these  controversies  arose  in  1798  when  a 
British  squadron  captured  in  the  English  Channel  a num- 
ber of  neutral  Swedish  merchantmen  under  the  escort  of  a 
Swedish  frigate.  They  were  condemned  next  year  by  Lord 
Stowell  in  a great  judgment  delivered  in  the  case  of  one  of 
them,  called  the  MariaA  He  held  that  the  right  of  search 
was  “an  incontestible  right  of  the  lawfully  commissioned 
cruisers  of  a belligerent  nation,”  that  “ the  authority  of  the 
sovereign  of  the  neutral  country  being  interposed  in  any 
manner  of  mere  force  cannot  legally  vary  the  right  ” of 

1 Treaties  of  the  United  States,  pp.  328,  725,  752,  903,  1046,  1091. 

2 Glass,  Marine  International  Law,  p.  168. 

3 e g.  Wheaton,  International  Law , §§  525-528  ; Woolsey,  International 
Law,  § 209. 

4 Robinson,  Admiralty  lieports,  I.,  340-379. 


ORDINARY  NEUTRAL  COMMERCE. 


573 


such  cruisers,  aud  that  “ the  penalty  for  the  violent  contra- 
vention of  this  right  is  the  confiscation  of  the  property  so 
withheld  from  visitation  and  search.”  The  resistance  to 
search  in  this  particular  case  was  very  slight.  No  shot  was 
fired  and  no  blood  was  shed.  But  there  can  be  no  doubt  of 
the  soundness  of  the  doctrines  laid  down  by  the  great  Eng- 
lish judge,  whatever  may  be  thought  of  the  severity  with 
which  he  applied  them.  The  Danish  jurist  Schlegel,  who 
attempted  to  argue  against  them,  relied  upon  a distinction 
between  a Positive  Law  of  Nations  and  a Natural  Law  of 
Nations.  He  admitted  that  the  former  allowed  the  search 
and  capture  of  neutral  vessels ; but  asserted  that  the  latter 
knew  nothing  of  such  a right,  and  based  upon  this  presumed 
contradiction  the  conclusion  that  belligerents  cannot  have  a 
greater  latitude  in  this  respect  than  neutrals  consent  to 
allow.1  Weak  as  this  reasoning  is,  it  was  good  enough  for 
the  Armed  Neutrality  of  1800,  which  added  to  the  four 
articles  of  its  predecessor  a fifth,  to  the  effect  that  the  decla- 
ration of  an  officer  in  command  of  a neutral  ship  of  war  that 
there  was  nothing  contraband  on  board  the  vessels  convoyed 
by  him  should  suffice  to  prevent  belligerent  search.2  The 
second  league  of  the  Baltic  powers  came  to  an  end  in  June, 
1801,  when  Russia  signed  a treaty  with  Great  Britain,  which 
admitted  a right  to  search  neutral  vessels  under  convoy,  but 
stipulated  for  a special  mode  of  procedure.  The  papers  of 
the  convoyed  vessels  were  first  to  be  examined  on  board  the 
convoying  vessel,  and  only  if  reasons  for  suspicion  arose 
were  the  merchantmen  themselves  to  be  searched.3  The 
constant  shifting  of  sides  in  the  great  continental  wars  soon 
brought  this  treaty  to  an  end  ; and  when  fresh  arrangements 
were  made  they  were  silent  on  the  subject  of  convoy.  The 
matter  was  not  mentioned  in  the  Declaration  of  Paris.  Each 

1 Visitation  of  Neutral  Vessels  under  Convoy  (English  Translation  pub- 
lished in  London,  1801),  pp.  67-70. 

2 C.  de  Martens,  Becueil,  II.,  215-219. 

8 Ibid.,  VII.,  263. 


574 


ORDINARY  NEUTRAL  COMMERCE. 


state  is  free  to  follow  whatever  policy  seems  good  to  it ; and 
there  is  grave  danger  of  serious  disagreement  in  the  future. 
England  still  takes  her  stand  upon  the  integrity  of  the  right 
of  search  ; but  all  the  great  maritime  powers  of  the  European 
continent  have  instructed  their  naval  commanders  to  be  sat- 
isfied with  the  declaration  of  a convoying  officer.  Their 
publicists  argue  that  International  Law  obliges  belligerents 
to  accept  this  security,  and  declare  that  any  attempt  on 
their  part  to  pass  over  it  and  use  actual  inspection  to  verify 
the  character  of  escorted  merchantmen  and  cargoes  would 
be  an  unwarrantable  outrage.1  The  United  States  occupy 
an  intermediate  position.  Their  legal  doctrine  is  English, 
their  executive  policy  continental.  Possibly  a way  out  of 
the  difficulty  may  be  found  by  the  general  adoption  of 
the  rules  contained  in  their  Naval  Regulations  with  the 
addition  of  a few  provisions  taken  from  the  Anglo-Russian 
treaty  of  1801.  An  American  officer  in  command  of  a con- 
voying vessel  must  be  furnished  with  a list  of  the  vessels 
under  convoy,  particulars  of  their  ownership  and  nationality, 
and  proof  that  any  ship  bound  for  a belligerent  destination 
carries  no  contraband  of  war.2  If  he  were  ordered  in  addi- 
tion to  permit  search  when  circumstances  of  grave  suspicion 
revealed  themselves  and  to  send  an  officer  to  accompany  the 
searching  party,  the  rules  he  followed  might  well  become 
the  law  of  the  civilized  world.  Belligerents  ought  not  to 
be  content  with  the  word  of  an  officer  who  may  easily  be  de- 
ceived, or  may  be  acting  in  good  faith  on  views  of  the  nature 
of  contraband  very  different  from  their  own.  The  substitu- 
tion of  the  responsibility  of  the  neutral  state  for  the  respon- 
sibility of  the  neutral  individual,  which  Hautefeuille  claims 
as  the  great  merit  of  the  convoying  system,  is  in  reality  its 
great  defect.  It  adds  to  the  existing  opportunities  of  quarrel 
between  belligerents  and  neutrals  a new  and  exasperating 

1 e.g.  Ortolan,’  Diplomatic  de  la  Mer , Liv.  III.,  Ch.  VII.  ; Hautefeuille, 
Droits  des  Nations  Neutres , Tit.  XII.,  Ch.  I.,  Sec.  II. 

2 Glass,  Marine  International  Law , p.  166. 


ORDINARY  NEUTRAL  COMMERCE. 


575 


one.  But  if  it  were  possible  to  retain  the  individual  re- 
sponsibility of  the  neutral  merchant  and  ship-owner,  and 
yet  avoid,  except  in  the  last  resort,  the  annoyance  and  fric- 
tion of  a search  of  each  separate  ship,  the  prospects  of  future 
peace  would  undergo  a sensible  improvement. 

It  is  generally  agreed  that  a neutral  cruiser  ought  on  no 
account  to  offer  convoy  to  the  merchant  vessels  of  either 
belligerent.  Its  commander  may  possibly  be  justified  in 
taking  under  his  escort  the  ships  of  other  neutral  states  ; 
but  it  is  difficult  to  see  on  what  principles  he  can  claim  for 
them  immunity  from  belligerent  search. ' Neutral  merchant- 
men attach  themselves  at  their  peril  to  a fleet  convoyed  by 
belligerent  cruisers.  In  so  doing  they  render  themselves 
liable  to  capture  by  the  war  ships  of  the  other  side.  The  act 
of  sailing  under  belligerent  convoy  is  in  itself  a violation  of 
neutrality,  and  the  vessel  which  is  guilty  of  it  may  be  con- 
demned by  a Prize  Court,  even  though  her  voyage  would 
have  been  perfectly  innocent  had  she  pursued  it  alone. 


CHAPTER  V. 


BLOCKADE. 

§ 269. 

Blockade  as  a warlike  operation  governed  by  special 
rules  is  wholly  maritime.  On  land  it  is  always  an  offence  to 
The  nature  and  his-  attempt  to  pass  through  the  lines  of  an  army 
tory  of  Blockade.  wiphout  permission;  and,  if  they  happen  to 

surround  a fortress,  the  operation  of  ordinary  rules  cuts  off 
all  communication  between  it  and  the  outside  world.  At 
sea,  however,  passage  is  not  usually  interdicted  ; but  mari- 
time law  gives  to  a belligerent  the  right  to  prevent  access  to 
or  egress  from  a port  of  his  enemy  by  stationing  a ship  or  a 
number1  of  ships  in  such  a position  that  they  can  intercept 
vessels  attempting  to  approach  or  leave  the  port  in  question. 
As  this  restriction  applies  to  neutral  vessels,  the  law  of 
blockade  is  a very  important  part  of  the  law  of  neutrality. 
It  deals  with  a particular  aspect  of  the  conflict  before 
remarked  upon  between  the  belligerent  claim  to  carry  on 
unimpeded  warlike  operations  and  the  neutral  claim  to  carry 
on  unrestricted  trade.1  Each  side  has  endeavored  to  forward 
its  interests  at  the  expense  of  the  other.  Belligerents  have 
sometimes  acted  as  if  the  mere  issue  of  a proclamation  to  the 
effect  that  the  enemy’s  ports,  or  some  of  them,  were  under 
blockade  gave  them  the  right  to  intercept  neutral  trade  ; 
and  sometimes  they  have  supported  such  a proclamation 
with  a notoriously  insufficient  force.  The  attempts  of  neu- 

1 See  § 265. 

576 


BLOCKADE. 


577 


trals  in  the  contrary  direction  are  not  so  numerous  and  have 
not  been  carried  so  far  ; but  instances  are  not  wanting  in 
which  they  have  sought  to  surround  the  right  to  blockade 
with  impossible  conditions,  or  even  to  deny  its  existence 
except  as  an  incident  of  the  active  operations  of  a siege.  In 
the  ea*’ly  days  of  modern  International  Law  it  was  a question 
whether  powerful  nations,  when  at  war,  would  allow  neutrals 
to  trade  at  all  with  their  enemies  ; 1 and  not  till  the  latter 
half  of  the  eighteenth  century  were  the  limits  of  their  power 
to  cut  off  such  trade  clearly  defined  by  Prize  Courts.  The 
matter  was  dealt  with  by  the  Armed  Neutralities  of  1780  and 
1800.  The  first  insisted  very  properly  that  no  port  should 
be  considered  blockaded  unless  there  was  evident  danger  in 
entering  from  the  proximity  of  a belligerent  squadron,  but 
added  the  inadmissible  proviso  that  the  blockading  vessels 
must  be  stationary.  The  second  repeated  the  words  of  its 
predecessor,  and  placed  at  the  end  of  them  the  further  restric- 
tion that  no  lawful  capture  could  be  made,  unless  notice  had 
been  given  to  the  peccant  vessel  by  the  commander  of  the 
blockading  squadron  and  she  had  afterwards  attempted  to 
enter.2  These  provisions  were  a mixture  of  good  law  and  bad. 
They  favored  neutral  interests  unduly  ; but  in  the  stress  and 
turmoil  of  the  wars  with  Imperial  France  the  pendulum 
swung  much  too  far  towards  the  other  side.  The  British 
Orders  in  Council  of  1806  and  1807,  and  the  Berlin  and 
Milan  Decrees  of  Napoleon,  extended  the  severities  of  block- 
ade in  the  most  unwarrantable  manner.  Great  Britain  placed 
in  the  position  of  blockaded  ports  all  places  which  excluded 
her  commercial  flag,  and  France  declared  the  British  Isles 
to  be  in  a state  of  blockade  at  a time  when  she  dared  not 
send  a single  squadron  out  to  sea  for  fear  of  capture  by  the 
victorious  British  navy.3  The  United  States,  as  the  chief 
neutral  power,  suffered  very  severely,  and  made  loud  and 

1 See  § 266. 

2 C.  de  Martens,  Becueil,  I.,  193,  194  and  II.,  215-219. 

3 Manning,  Law  of  Nations  (Amos’s  ed.)  Bk.  V.,  Ch.  VI. 


578 


BLOCKADE. 


justifiable  complaints.  The  violence  of  the  belligerents  was 
by  no  means  confined  to  the  matter  of  blockade.  It  extended 
over  the  whole  range  of  neutral  commerce  and  produced 
the  irritation  which  led  to  the  War  of  1812  between  Great 
Britain  and  the  American  republic.1  The  peace  of  1815 
gave  an  opportunity  for  passions  to  cool  and  reason  to 
resume  its  sway  over  men’s  minds.  The  process  of -reflec- 
tion removed  difficulties,  and  in  1856  the  fourth  article  of  the 
Declaration  of  Paris  gave  the  sanction  of  express  consent 
to  the  generally  accepted  proposition  that  “blockades  to 
be  binding  must  be  effective.”2  The  words  which  follow 
require  an  impossibility  if  they  are  taken  in  the  strictest 
literal  sense.  They  define  an  effective  blockade  as  one 
“ maintained  by  a force  sufficient  really  to  prevent  access 
to  the  coast  of  the  enemy  ” ; and  a small  boat  might  fre- 
quently pass  through  the  most  numerous  and  efficient  squad- 
ron. It  is,  however,  clear  from  the  explanations  given  by 
the  ministers  of  the  various  countries  which  signed  the 
Declaration  that  nothing  further  was  intended  than  the 
assertion  of  the  principle  that  there  must  be  a real  danger 
in  any  attempt  to  pass  through.3 

This  just  and  reasonable  rule  has  been,  observed  in  all  the 
blockades  of  the  last  eighty  years.  Neutrals  have  been 
satisfied  with  it  and  have  recognized  the  validity  of  opera- 
tions which  conformed  to  its  requirements.  But  in  recent 
times  a school  of  publicists  has  put  forth  a theory  that  block- 
ade is  the  displacement  by  a belligerent  of  the  territorial 
jurisdiction  of  his  blockaded  enemy,  and  therefore  cannot 
be  carried  on  beyond  the  limits  of  territorial  waters.4  The 
slightest  reference  to  history  is  sufficient  to  disprove  this 
view.  Blockades  are  constantly  maintained  by  vessels  cruis- 

1 Wharton,  International  Law  of  the  United  States,  § 228. 

2 See  § 267. 

8 Wheaton,  International  Law  (Dana’s  ed.),  note  233. 

4 Ortolan,  Diplomatic  de  la  Mer,  II.,  Ch.  IX. ; Hautefeuille,  Droits  des 
Nations  Neutres,  Tit.  IX.,  Ch.  I.,  Sec.  I. ; Calvo,  Droit  International , § 2567. 


BLOCKADE. 


579 


ing  outside  the  three-mile  limit.  They  are  warlike  opera- 
tions, and  can  therefore  take  place  wherever  it  is  lawful  to 
engage  in  war.  No  one  doubts  that  a great  naval  battle 
may  be  fought  on  the  high  seas ; and  it  seems  absurd  to 
argue  that  the  bloodless  operations  of  a blockading  squadron 
are  interdicted  in  places  where  destruction  and  slaughter  on 
a large  scale  can  be"  freely  indulged  in  to  the  imminent 
danger  of  any  neutral  vessels  whose  captains  are  foolish 
enough  to  approach  the  scene  of  conflict.  The  theory  we 
are  considering  seems  to  have  been  invented  to  justify  a 
number  of  restrictions  upon  the  right  of  blockade  which  are 
put  forth  as  law  by  the  writers  in  question,  but  have  no 
foundation  in  the  practice  of  states.  We  are  often  told, 
for  instance,  that  the  blockading  vessels  must  be  stationary, 
sometimes  that  they  must  be  anchored,  and  even  that  the 
approaching  ship  must  be  under  a cross-fire  from  at  least 
two  of  them.  These  statements  are  among  the  curiosities 
of  the  literature  of  International  Law,  but  they  have  no 
connection  with  the  hard  facts  of  international  relations. 
The  Institut  de  Droit  International  has  not  embodied  them 
in  its  maritime  code  ; 1 and  it  may  be  safely  said  that  the 
accepted  conditions  of  effective  blockade  do  not  go  beyond 
the  wording  of  the  fourth  article  of  the  Declaration  of  Paris. 

§ 270. 

The  legality  of  commercial  blockades  has  been  frequently 
discussed  in  modern  times.  A distinction  has  been  drawn 
between  them  and  strategic  or  military  block-  8trategic  and  com. 
ades,  which  are  carried  on  with  a view  to  the  TheCiegautykofthe 
ultimate  reduction  of  the  place  blockaded,  latter- 
whereas  the  object  of  commercial  blockades  is  simply  to 
stop  ingress  and  egress,  and  weaken  the  resources  of  the 
enemy  by  cutting  off  his  external  trade.  For  this  reason  a 
strong  feeling  against  them  has  grown  up  in  the  mercantile 

1 Tableau  General  de  VInstitut  de  Droit  International , pp.  202-204. 


580 


BLOCKADE. 


world.  It  is  said  that  the  harm  they  inflict  upon  neutrals  is 
greater  than  the  advantage  they  give  to  belligerents.  This 
is  probably  true,  under  the  present  conditions  of  war  and 
commerce,  when  the  land  frontiers  of  the  country  whose 
ports  are  blockaded  abut  upon  the  territory  of  civilized  and 
neutral  states.  And  it  is  quite  possible  for  the  blockading 
belligerent  to  be  a sufferer  by  the  success  of  his  own  opera- 
tions. The  chief  effect  of  the  blockade  of  Russian  ports  in 
the  Crimean  War  was  to  raise  the  price  of  hemp  and  tallow 
and  other  Russian  products  in  the  English  market.  Goods 
that  were  formerly  brought  over  the  sea  from  Riga  and 
Odessa  were  taken  by  land  into  Germany  at  far  greater 
expense,  and  shipped  from  the  Baltic  ports  of  Prussia.  But 
on  the  other  hand  nothing  can  be  more  effective  than  an 
extensive  and  well-enforced  commercial  blockade  in  dimin- 
ishing the  resources  of  a country  whose  ports  are  its  chief 
avenue  of  communication  with  the  outside  world.  In  the 
American  Civil  War,  while  the  South  had  a vast  seaboard 
and  numerous  ports,  its  territory  touched  but  one  neutral 
state,  and  that  was  poor  and  undeveloped.  Little  trade 
could  come  across  the  Mexican  border ; and  when  the  fleets 
of  the  North  were  able  to  maintain  an  efficient  blockade  of 
the  entire  coast  of  the  Confederacy,  few  supplies  from 
abroad  could  enter  the  country  and  few  domestic  products 
could  go  out  to  be  exchanged  for  munitions  of  war.  There 
can  be  no  doubt  that  this  isolation  contributed  more  than 
any  other  single  cause  to  the  triumph  of  the  Union  arms. 
Little  blood  was  shed  to  bring  it  about,  and  yet  it  was 
more  effective  than  many  battles.  A still  more  remarkable 
demonstration  of  the  efficiency  of  commercial  blockades 
under  favorable  conditions  is  afforded  by  a glance  at  the 
position  of  Great  Britain  as  an  island  power.  Two-thirds 
of  her  food  supplies  are  imported ; and  if  it  were  possible 
for  her  shores  to  be  effectively  blockaded,  she  would  be 
reduced  to  sue  for  terms  in  a few  weeks.  With  such  facts 
as  these  before  them  it  is  hardly  likely  that  strong  maritime 


BLOCKADE 


581 


belligerents  will  give  up  the  right  of  cutting  off  the  trade  of 
their  enemies  with  the  rest  of  the  world.  Before  1861  the 
United  States  gave  occasional  expression  in  their  diplomatic 
documents  to  the  impatience  of  commercial  blockades  felt 
by  neutral  and  mercantile  communities.  General  Cass,  for 
instance,  wrote  as  Secretary  of  State  in  1859  that  “ the 
blockade  of  a coast  . . . with  the  real  design  of  carrying 
on  a war  against  trade,  and  from  its  nature  against  the  trade 
of  peaceable  and  friendly  powers,  instead  of  a war  against 
armed  men,  is  a proceeding  which  it  is  difficult  to  reconcile 
with  reason  or  with  the  opinions  of  modern  times.”1  Yet 
less  than  two  years  afterwards  President  Lincoln  established 
the  largest  and  most  efficacious  commercial  blockade  recorded 
in  history.  After  its  action  in  the  Civil  War  the  Govern- 
ment of  Washington  cannot  with  any  show  of  consistency 
object  to  similar  treatment  of  hostile  coasts  by  other  states. 
But  we  may  perhaps  hope  that  the  occasions  for  such  treat- 
ment will  in  future  be  very  rare.  A belligerent  will  not 
often  be  able  to  exhaust  an  opponent  by  cutting  off  its  sea- 
borne commerce  ; and  unless  he  can  show  a clear  prospect  of 
bringing  the  war  to  a speedy  termination  in  this  way,  the 
pressure  of  neutral  states  will  be  so  great  that  he  will  hardly 
venture  upon  an  operation  far  more  likely  to  be  detrimental 
to  them  than  beneficial  to  him. 


§ 271. 

In  considering  the  law  of  blockade  it  will  be  convenient 
to  arrange  it  under  heads.  We  cannot  hope  to  improve 
upon  the  classification  made  by  Lord  Stowell  in  The  heads  of  th 
the  case  of  the  Betsy,1  which  he  decided  in  1798.  law  of  blockade- 
One  of  the  two  main  points  to  be  determined  was  whether  a 
captured  American  vessel  had  broken  a legal  blockade  of 
the  island  of  Guadeloupe.  With  regard  to  this  the  learned 


1 Wharton,  International  Law  of  the  United  States,  § 361. 

2 Robinson,  Admiralty  Reports,  I.,  93. 


582 


BLOCKADE. 


judge  remarked,  “ On  the  question  of  blockade  three  things 
must  be  proved : 1st,  The  existence  of  an  actual  blockade ; 
2d,  The  knowledge  of  the  party;  and  3d,  Some  act  of 
violation  either  by  going  in,  or  by  coming  out  with  a cargo 
laden  after  the  commencement  of  the  blockade.”  The  state- 
ment of  the  third  of  these  heads  must  be  slightly  altered  in 
order  to  make  it  absolutely  accurate.  This  change,  and  the 
addition  of  a few  words  on  the  penalty  for  breach  of  block- 
ade, will  enable  us  to  give  a clear  outline  of  the  accepted 
rules  on  the  subject. 

§ 272. 

We  have  first  to  deal  with 

The  existence  of  an  actual  blockade. 

Our  historical  sketch 1 has  already  shown  us  that  what  are 
called  paper  blockades  are  no  longer  recognized.  We  need 

The  existence  of  no^  add  further  proof  of  a proposition  which 
an  actual  blockade.  keen  admitted  on  all  sides  for  more  than  a 

hundred  years.  At  the  commencement  of  a blockade,  neu- 
tral powers  are  not  exacting  in  their  requirements  as  to  the 
force  necessary  to  make  it  effective.  But  if,  after  a reason- 
able time  has  elapsed,  their  warnings  remain  unheeded,  and 
the  number  of  vessels  stationed  off  the  blockaded  ports  is 
obviously  insufficient  to  close  them,  their  government  will 
decline  to  recognize  the  validity  of  any  captures  of  their 
merchantmen  for  breach  of  the  so-called  blockade,  and  will 
demand  reparation  for  illegal  seizures  and  condemnations. 
The  ingress  or  egress  of  vessels  when  the  weather  gives 
them  special  advantages,  or  during  the  temporary  absence 
of  the  blockading  squadron  owing  to  a storm  or  for  the 
purpose  of  a chase  or  an  engagement,  does  not  render  the 
blockade  ineffective.  All  International  Law  requires  is  that 
the  attempt  to  run  in  or  out  shall  be  attended  by  manifest 
and  pressing  danger.  Moreover,  the  vessels  engaged  in 

1 See  § 269. 


BLOCKADE. 


583 


maintaining  a blockade  need  not  be  stationed  in  close  prox- 
imity to  the  port  they  close.  The  conformation  of  the  coast, 
the  nature  of  the  channels,  the  set  of  the  currents,  and  the 
neutral  or  belligerent  character  of  the  sovereignty  exercised 
over  the  adjoining  territory,  are  all  elements  in  determining 
the  position  of  the  blockaders.  In  the  Crimean  War  the 
port  of  Riga  was  blockaded  by  a single  British  vessel,  sta- 
tioned a hundred  and  twenty  miles  from  the  town  in  a 
narrow  channel  which  formed  the  only  navigable  approach 
to  the  place.1  But  had  one  shore  been  neutral  territory, 
and  had  the  channel  communicated  with  neutral  as  well  as 
belligerent  ports,  the  proceeding  would  have  been  inadmis- 
sible. In  the  American  Civil  War  the  Federal  government 
did  not  attempt  to  include  the  mouth  of  the  Rio  Grande  in 
its  blockade  of  the  Southern  coast,  because  the  middle  of 
the  stream  formed  the  boundary  between  the  United  States 
and  Mexico,  and  the  Mexican  port  of  Matamoras  was  situ- 
ated within  the  estuary.2  A blockade  cannot  extend  beyond 
the  area  covered  by  the  operations  of  the  force  which  main- 
tains it.  This  principle  was  laid  down  in  the  case  of  the 
Stert.3  The  court  held  that  goods  coming  from  a block- 
aded port  by  means  of  interior  canal  navigation  which  was 
perfectly  open  were  free  from  hostile  seizure.  But  it  is 
not  necessary  that  channels  should  in  every  case  be  closed 
by  ships,  though  a maritime  blockade  without  vessels  to 
support  it  would  be  a contradiction  in  terms.  As  an  opera- 
tion supplementary  to  those  of  the  fleet,  a waterway  may  be 
closed  by  stones,  sunken  hulls,  torpedoes  or  other  obstruc- 
tions. When,  in  1861,  Earl  Russell  remonstrated  on  behalf 
of  the  British  Government  against  the  attempt  made  by 
the  Federal  forces  to  block  up  some  of  the  approaches  to 
Charleston  and  Savannah  by  sinking  vessels  in  the  channels, 
Mr.  Seward  replied  that  the  obstructions  were  only  tem- 

1 Hall,  International  Law,  § 260. 

2 Wharton,  International  Law  of  the  United  States,  § 359. 

3 Robinson,  Admiralty  Reports , IV.,  65. 


584 


BLOCKADE. 


porary  and  would  be  removed  at  the  termination  of  the 
war.  In  this  particular  case  there  was  no  intention  to  inflict 
permanent  injury  upon  “the  commerce  of  nations  and  the 
free  intercourse  of  the  Southern  States  of  America  with  the 
civilized  world.”1  But  even  if  such  a design  had  been  enter- 
tained, it  is  difficult  to  see  on  what  grounds  of  law  neutrals 
could  protest  against  it.  A belligerent,  who  may  knock 
the  fortified  ports  of  his  enemy  to  pieces  by  bombardment 
if  they  resist  his  attack,  may  surely  destroy  the  approaches 
to  them  from  the  sea  in  order  to  further  the  objects  of  his 
war.  Neutrals  are  jealous,  and  properly  jealous,  of  methods 
which  inflict  severe  injury  on  their  trade  ; but  they  can 
hardly  claim  to  make  its  future  prosperity  the  measure  of- 
the  legality  of  hostile  acts.  There  is,  however,  one  form 
of  closure  which  states  are  not  free  to  adopt.  In  case  they 
are  attempting  to  put  down  a domestic  revolt,  they  cannot 
shut  up  ports  in  possession  of  the  insurgents  by  merely 
declaring  them  no  longer  open  to  trade.  Great  Britain 
maintained  this  position  successfully  in  1861  against  both 
New  Granada  and  the  United  States.  The  government  of 
each  of  these  countries  claimed  a right  to  close  by  munici- 
pal regulation,  and  not  by  blockade,  certain  ports  held  by 
revolted  citizens.  The  discussion  which  followed  made  it 
quite  clear  that  such  a claim  cannot  be  sustained.  A state 
is  free  to  exclude  both  foreign  and  domestic  vessels  from 
any  harbor  over  which  it  actually  exercises  the  powers  of 
sovereignty.  But  when  its  authority  is  at  an  end  owing  to 
insurrection  or  belligerent  occupation  by  a hostile  force,  it 
must  fall  back  upon  warlike  measures  ; and  the  only  warlike 
measure  which  will  lawfully  close  a port  against  neutral 
commerce  is  an  effective  blockade.2 

A blockade  ceases  to  exist  when  the  war  terminates,  or 
when  the  government  which  has  instituted  it  withdraws  the 

1 Glass,  Marine  International  Law , pp.  107,  108. 

2 Wharton,  International  Law  of  the  United  States , §§  359,  361 ; Glass, 
Marine  International  Law,  pp.  105-107. 


BLOCKADE. 


585 


forces  engaged  in  carrying  it  on.  It  is  also  terminated  if 
the  blockading  squadron  is  defeated  and  driven  off  by  a 
hostile  force.  But  the  victory  of  the  attacking  party  must 
he  complete.  It  is  not  enough  to  destroy  a vessel  or  two, 
if  a number  sufficient  to  carry  on  the  blockade  are  left  unin- 
jured and  still  at  their  stations.  Nor  would  the  port  be 
opened  if  an  outlying  naval  force  was  driven  in  upon  its 
supports,  and  the  main  body  remained  unaffected  by  the 
blow.  It  must  further  be  held  that  the  occupation  by  a 
victorious  belligerent  of  a place  under  blockade  by  another 
portion  of  its  forces,  puts  an  immediate  end  to  the  operations 
of  the  blockading  ships,  and  renders  illegal  any  further  seiz- 
ure by  them  of  neutral  vessels.  The  contrary  doctrine  was 
laid  down  by  the  Supreme  Court  of  the  United  States  in  the 
case  of  the  Circassian,1  an  English  vessel  which  was  captured 
and  condemned  for  attempting  to  run  the  blockade  of  New 
Orleans  after  the  city  had  been  taken  by  the  Union  forces. 
But  the  Mixed  Commission,  appointed  under  Article  XII. 
of  the  Treaty  of  Washington,  gave  compensation  for  wrong- 
ful seizure  to  the  owners  of  the  vessel.2  It  is  evident  that 
a right  which  can  be  exercised  only  against  hostile  places 
comes  to  an  end  when  such  places  cease  to  be  hostile.  If  a 
belligerent,  who  has  succeeded  in  occupying  a port  belong- 
ing to  his  enemy,  wishes  to  shut  it  against  neutral  trade, 
he  must  do  so  by  municipal  closure,  not  by  International 
blockade 

§ 278. 

The  next  head  to  demand  attention  is 

The  knowledge  of  the  party  supposed  to  have  offended. 

Something  more  than  the  establishment  of  an  efficient  block- 
ade is  necessary  in  order  to  endow  the  blockaders  with  the 

1 Wallace,  Reports  of  the  United  States  Supreme  Court , II.,  135. 

2 Wharton,  International  Law  of  the  United  States,  § 359 ; Treaties  of  the 
United  States , p.  484. 


586 


BLOCKADE. 


right  to  capture  vessels  attempting  to  enter  or  leave  the 
blockaded  port.  It  is  necessary  that  the  existence  of  the 

blockade  should  be  known  to  those  who  are  ac- 

tLeparty  supposed  cused  of  breaking  it.  Due  notice  must,  there- 
to have  offended.  r . i i • 

tore,  be  given  to  neutral  traders  and  ship  owners. 
Those  who  are  within  a blockaded  port  are  always  presumed 
to  be  aware  of  the  blockade.  But  according  to  British  and 
American  practice  notification  to  those  outside  may  be  either 
actual  or  constructive.  It  is  actual  when  the  blockaders 
stop  a vessel  attempting  to  enter,  and  endorse  on  its  register 
a warning  to  the  effect  that  the  port  in  question  is  closed 
and  must  not  in  future  be  approached.  It  is  constructive 
when  the  blockade  is  notorious  all  over  the  mercantile  world 
or  when  a diplomatic  notification  has  been  given  to  neutral 
states,  notice  to  a government  being  held  to  be  equivalent  to 
notice  to  all  its  subjects.  This  doctrine  was  clearly  laid 
down  by  Lord  Stowell  in  the  case  of  the  Neptunus,1  and  was 
followed  by  the  courts  of  the  United  States  in  the  great 
American  Civil  War,  though  the  action  of  the  executive  at 
Washington  has  not  always  been  consistent  with  it.  Several 
of  the  earlier  treaties  of  the  United  States  provide  that  no 
vessel  shall  be  condemned  for  breach  of  blockade,  unless  she 
has  received  notice  on  her  voyage  that  her  port  of  destina- 
tion is  blockaded ; and  the  rule  in  question  was  embodied  in 
so  recent  a diplomatic  document  as  the  treaty  with  Italy  of 
1871. 2 When  President  Lincoln  instituted  a blockade  of  the 
coast  of  the  Confederacy,  his  proclamation  of  April  19, 1861, 
declared  that  if  any  vessel  approached  a blockaded  port  she 
would  be  “ duly  warned  by  the  commander  of  one  of  the 
blockading  vessels,  who  will  endorse  on  her  register  the  fact 
and  date  of  such  warning ; and,  if  the  same  vessel  shall 
again  attempt  to  enter  or  leave  the  blockaded  port,  she  will 
be  captured.”  But  in  all  cases  which  came  before  the 
Courts  it  was  decided  that  the  provisions  for  giving  warning 

1 Robinson,  Admiralty  Reports,  II.,  111. 

2 Treaties  of  the  United  States,  p.  584. 


BLOCKADE. 


58? 


to  vessels  applied  only  to  those  which  approached  in  igno- 
rance of  the  existence  of  the  blockade.  Previous  know- 
ledge, however  acquired,  was  held  to  subject  neutrals  to 
capture  and  condemnation.  No  complaint  of  this  construc- 
tion was  made  by  other  powers  ; and  throughout  the  war 
the  rules  of  the  English  Prize  Courts  on  the  subject  of  noti- 
fication were  enforced  by  the  tribunals  of  the  United  States.1 

France  is  the  chief  of  a group  of  states  whose  practice 
differs  from  that  of  the  English-speaking  peoples  and  the 
powers,  like  Prussia  and  Denmark,  which  follow  their  ex- 
ample. Her  doctrine  is  that  each  neutral  trader  as  he 
approaches  the  blockaded  spot  is  entitled  to  a warning  from 
one  of  the  blockading  squadron.  It  is  held  that  unless  a 
ship  has  been  so  warned  it  is  not  liable  to  seizure.  Block- 
ade is  regarded  as  an  operation  which  may  cease  at  any  time 
from  any  one  of  a variety  of  causes,  and  consequently  neu- 
trals must  be  allowed  to  inquire  at  the  blockaded  port  itself 
whether  it  is  still  closed  to  their  commerce.  General  diplo- 
matic notification  is  given  by  the  French  Government  to 
other  states  as  a matter  of  courtesy,  though  according  to 
French  usage  its  presence  or  absence  makes  no  difference  in 
the  legal  position  of  the  parties  concerned.  There  can  be 
no  doubt  that  France  and  Spain,  and  the  other  powers  which 
adopt  the  same  rule,  are  thereby  granting  a concession  to 
neutrals.  International  Law  demands  knowledge  as  a condi- 
tion precedent  to  condemnation.  But  it  does  not  lay  down 
further  conditions  as  to  the  way  in  which  the  knowledge  in 
question  must  be  acquired.  If  a state  chooses  to  ignore  all 
ways  but  one,  it  must  often  allow  offenders  to  depart  unmo- 
lested. With  modern  facilities  for  communication  the  truth 
as  to  the  continuous  existence  of  a blockade  must  be  known 
in  ninety-nine  cases  out  of  a hundred  all  over  the  civilized 
world,  and  in  the  one  case  where  there  is  honest  ignorance 
British  practice  allows  proof  of  it  to  be  given. 

1 For  the  whole  matter,  see  Wheaton,  International  Law  (Dana’s  ed.), 
note  235. 


588 


BLOCKADE. 


The  advantage  of  simplicity  is  certainly  possessed  by  the 
French  rule.  British  and  American  practice  is  much  more 
complicated.  It  necessitates  a distinction  between  blockades 
de  facto  only  and  notified  blockades,  the  former  being  main- 
tained by  a sufficient  force  but  not  brought  diplomatically  to 
the  notice  of  neutral  governments,  while  the  latter  are  not 
only  effective  in  point  of  fact  hut  are  also  made  the  subjects 
of  diplomatic  communications.  As  a rule  notification  is 
given  to  foreign  powers ; but  exceptional  circumstances  may 
cause  its  omission.  If,  for  instance,  the  commander  of  a 
squadron  operating  at  a great  distance  from  his  country  sees 
fit  in  some  sudden  emergency  to  institute  a blockade,  it  will 
not  be  notified  for  some  time,  if  at  all ; and  yet  it  will  be  law- 
ful, unless  disavowed  by  the  home  government.  The  absence 
of  formal  diplomatic  notice,  from  whatever  cause  it  may 
spring,  has  no  effect  upon  the  validity  of  the  blockade,  though 
it  makes  a great  difference  with  regard  to  the  circumstances 
under  which  a Prize  Court  will  pronounce  a sentence  of 
condemnation. 

According  to  what  may  be  termed  the  British  rules,  when 
a blockade  has  been  duly  notified  to  neutral  governments  the 
burden  of  proof  of  ignorance  of  it  rests  upon  neutral  ship- 
masters, whereas  in  the  case  of  a blockade  de  facto  only  the 
burden  of  proof  of  knowledge  rests  on  the  captors.  In  the 
case  of  the  Neptunus  already  referred  to,  Lord  Stowell  went 
so  far  as  to  say,  “ a neutral  master  can  never  be  held  to  aver 
against  a notification  of  blockade,  that  he  is  ignorant  of  it.”1 
But  we  may  feel  certain  that  this  severe  doctrine  would  not 
be  acted  upon  to-day.  Indeed,  its  author  allowed  excep- 
tions which  practically  destroyed  it.  For  instance,  in  the 
case  of  the  Betsy , an  American  vessel  brought  in  for  adjudica- 
tion in  1799  on  a charge  of  attempting  to  break  the  blockade 
of  Amsterdam,  he  ordered  restoration  on  the  ground  that  the 
distance  of  the  United  States  from  the  scene  of  warfare  made 
it  reasonable  for  American  vessels  to  be  allowed  to  inquire 
1 Robinson,  Admiralty  Reports , II.,  113. 


BLOCKADE. 


589 


in  Europe  whether  a notified  blockade  known  to  have  been 
instituted  when  they  started  was  still  in  existence  on  their 
arrival.1  A similar  but  considerably  wider  permission  to 
inquire  was  given,  not  merely  to  European  vessels,  but  to  all 
neutral  ships,  by  the  Prize  Courts  of  the  United  States  in  the 
American  Civil  War.  Judge  Betts  discussed  the  question 
in  the  case  of  the  Empress,  2 and  granted  a right  of  inquiry 
subject  to  the  two  conditions  that  the  intention  to  inquire 
and  go  elsewhere  if  the  blockade  was  still  enforced  was  clearly 
set  forth  in  the  ship’s  papers,  and  that  the  information  was 
not  sought  at  the  blockaded  port.  Commercial  interests  are 
now  powerful  enough  to  demand  that  if  the  shipmaster  be 
really  ignorant  he  shall  be  allowed  to  prove  his  lack  of  know- 
ledge, even  when  the  blockade  has  been  notified  to  his  gov- 
ernment. On  the  other  hand  the  case  of  the  Franciska 3 
shows  that,  although  no  notification  has  taken  place  and  the 
blockade  is  a blockade  de  facto  only,  its  notoriety  will  raise  a 
presumption  of  knowledge  which  the  neutral  captain  must 
rebut  if  he  is  to  save  his  vessel  from  confiscation. 

Another  difference  between  the  legal  effects  of  notified  and 
unnotified  blockades  refers  to  the  exact  period  at  which  the 
vessel  is  held  to  have  become  liable  to  capture.  Where  diplo- 
matic notice  has  been  given  “ the  act  of  sailing  for  a block- 
aded place  is  sufficient  to  constitute  the  offence.”  The 
presumption  is  that  the  blockade  continues,  if  no  notification 
of  its  termination  has  been  received.  A breach  of  blockade 
is  therefore  committed  the  moment  the  vessel  leaves  neutral 
waters  for  the  forbidden  destination.  A guilty  intention 
exists  from  the  beginning.  The  ship  is  in  delicto,  and  can 
be  captured  and  condemned.  But  where  there  has  been  no 
diplomatic  notice,  there  can  be  no  presumption  of  the  con- 
tinuance of  the  blockade,  “ and  the  ignorance  of  the  party 
may  be  admitted  as  an  excuse  for  sailing  on  a doubtful  and 

1 Robinson,  Admiralty  Reports , I.,  332. 

2 Blatcliford,  Prize  Cases,  p.  178. 

3 Moore,  Privy  Council  Cases,  X.,  58. 


590 


BLOCKADE. 


provisional  destination.”1  In  such  a case  the  offence  does  not 
commence  as  soon  as  the  voyage  begins.  It  cannot  be  held 
to  attach  to  the  vessel  until  her  captain  has  learned  by  inquiry 
en  route  that  the  blockade  is  still  maintained  and  has  never- 
theless continued  his  course  for  the  forbidden  port. 

The  last  distinction  is  concerned  with  the  permanence  of 
the  blockade.  If  no  notification  has  been  given  the  termina- 
tion of  the  fact  puts  an  end  to  its  legal  consequences.  But 
if  diplomatic  notice  has  been  sent  to  neutral  governments, 
the  occasional  removal  of  the  blockading  vessels  to  chase  an 
enemy  or  escape  a storm,  or  for  any  other  temporary  pur- 
pose, does  not  open  the  port.  It  still  remains  legally  closed, 
and  vessels  which  enter  or  leave  it  are  subject  to  capture  and 
condemnation  for  breach  of  blockade.  A blockade  by  notifi- 
cation is  presumed  to  continue  until  its  discontinuance  has 
been  notified,  unless  the  blockaders  have  been  driven  away 
by  the  enemy,  in  which  case  it  is  at  an  end,  and  a fresh  noti- 
fication is  required  if  it  is  afterwards  renewed.  Lord  Stowell 
laid  down  the  rule  in  the  case  of  the  Neptunus , 2 a vessel  cap- 
tured in  attempting  to  escape  from  the  Texel  in  1798,  and 
the  exception  in  the  case  of  the  Triheten ,3  a vessel  taken  Qn 
a voyage  to  the  port  of  St.  Lucar,  from  which  the  British 
blockading  squadron  had  been  driven  some  time  before. 
This  Neptunus  must  not  be  confounded  with  another  case  of 
the  same  name  previously  cited,  though  both  are  concerned 
with  the  difference  between  blockades  de  facto  only  and  block- 
ades by  notification.  The  doctrines  acted  upon  in  it  were 
adopted  by  the  United  States  in  the  Civil  War.  On  one 
occasion  the  harbor  of  Charleston  remained  open  for  five  days, 
on  account  of  the  absence  of  a vessel  which  had  been  sent  to 
intercept  a cargo  of  arms  expected  elsewhere,  but  it  was 
maintained  that  no  interruption  of  the  blockade  took  place, 
seeing  that  it  had  been  duly  notified  to  neutral  powers.4 

1 See  the  Neptunus , Robinson,  Admiralty  Beports,  II.,  113. 

2 Robinson,  Admiralty  Beports,  I.,  171. 

3 Ibid.,  VI.,  67.  4 Glass,  Marine  International  Law , p.  91. 


BLOCKADE. 


591 


Knowledge  of  an  effective  blockade  is  as  consistent  with 
innocence  of  any  attempt  to  break  it  as  knowledge  of  the 
existence  of  a purse  in  a neighbor’s  pocket  is  consistent  with 
perfect  honesty.  To  create  an  offence  something  beyond  the 
presence  of  information  is  required.  There  must  be  in  addition 

An  act  of  violation  of  blockade. 

When  Lord  Stowell  dealt  with  this  point  in  the  passage 
previously  quoted,1  the  words  he  used  were  “ Some  act  of 
violation  either  by  going  in,  or  by  coming  out  An  act  ofviolatjon 
with  a cargo  laden  after  the  commencement  of  of  the  blockade, 
the  blockade.”  But  it  is  clear  that  these  expressions  require 
enlargement,  because,  as  we  have  seen  in  the  preceding  section, 
under  certain  circumstances  the  mere  act  of  sailing  for  a 
blockaded  port  constitutes  the  offence,  and  the  neutral  vessel 
is  subject  to  capture  as  soon  as  she  appears  on  the  high  seas 
bound  for  the  forbidden  destination.  In  all  great  blockades 
vessels  are  constantly  seized  before  they  have  come  near 
enough  to  the  closed  harbor  to  make  any  attempt  to  enter 
it.  With  the  addition  necessitated  by  these  considerations 
the  statement  of  the  great  English  judge  will  stand. 

We  must  notice  that  egress  is  forbidden  as  well  as  ingress  ; 
but  a custom  has  sprung  up  of  granting  to  neutral  vessels 
found  in  a belligerent  port  at  the  commencement  of  a block- 
ade a fixed  period  within  which  they  may  leave  without  fear 
of  molestation.  Fifteen  days  was  the  time  fixed  at  the  com- 
mencement of  the  great  American  Civil  War.  Special 
indulgence  is  sometimes  given  in  cases  where  extensive  re- 
pairs are  needed,  or  other  circumstances  beyond  the  control 
of  the  shipmaster  prevent  the  departure  of  the  vessel  within 
the  days  of  grace.  With  regard  to  the  cargo,  the  rule  is 
that  what  was  laded  before  the  commencement  of  the  block- 
ade may  be  taken  out,  but  not  what  was  taken  on  board  after 

1 See  § 271. 


592 


BLOCKADE. 


the  closure  of  the  port.  This  was  laid  down  by  Lord  Stowell 
in  1798  in  the  case  of  the  Bets?/,1  and  his  doctrine  was  fol- 
lowed by  Judge  Betts  in  1861  in  the  case  of  the  Hiawatha 2 
and  applied  by  the  courts  of  the  United  States  throughout 
the  war  of  Secession.  The  great  English  jurist  gave  indul- 
gence in  the  case  of  the  Juffroiv  Maria  Shrceder3  to  goods 
sent  in  to  the  port  of  Havre  before  the  blockade  commenced, 
but  re-shipped  afterwards  in  order  to  be  withdrawn  by  the 
neutral  proprietor ; and  it  is  scarcely  possible  to  doubt  that 
a similar  immunity  from  capture  would  be  granted  in  a 
similar  case  to-day.  Indeed  the  treaty  of  1871  between  the 
United  States  and  Italy  goes  farther,  and  makes  an  inroad 
on  the  strictness  of  the  old  rule  that  any  attempt  to  escape 
with  cargo  laden  after  the  commencement  of  the  blockade 
may  be  punished  by  capture  and  condemnation.  It  stipulates 
that  a vessel  of  either  of  the  contracting  parties  which  at- 
tempts to  carry  such  cargo  out  of  a port  blockaded  by  the 
vessels  of  the  other,  shall  be  warned  to  return  and  discharge 
it,  and  shall  not  be  captured  unless  she  tries  a second  time  to 
escape  with  it  on  board.4 

It  is  not  necessary  to  labor  the  point  that  an  attempt  to 
enter  a blockaded  port  is  an  act  of  violation  which  subjects 
the  vessel  concerned  in  it  to  capture  and  condemnation.  We 
saw  in  the  preceding  section  that  in  the  case  of  a notified 
blockade,  or  a blockade  the  existence  of  which  was  notorious, 
neutral  vessels  were  held  to  be  in  delicto  from  the  moment 
they  left  their  own  ports  and  waters  on  the  voyage  to  the 
blockaded  port.  But  if  during  the  voyage  the  blockade 
ceases,  whether  from  the  termination  of  the  war  or  from  any 
other  cause,  the  offence  ceases  also  and  the  vessel  is  no  longer 
liable  to  hostile  seizure.  Moreover,  if  during  the  voyage 
information  is  received  from  a source  above  suspicion  that 

1 Robinson,  Admiralty  Reports , I.,  93. 

2 Blatchford,  Prize  Cases , p.  19. 

3 Robinson,  Admiralty  Reports , IV.,  89,  note. 

4 Treaties  of  the  United  States,  p.  584. 


BLOCKADE. 


593 


the  blockade  is  raised,  the  shipmaster  may  proceed  in  safety, 
and  is  entitled  to  a warning  should  it  turn  out  that  he  has 
been  misinformed.  Lord  Stowell  acted  on  this  principle  in 
the  case  of  the  Neptunus 1 decided  in  1799.  Her  captain  had 
been  told,  and  as  it  turned  out  wrongly  told,  by  the  com- 
mander of  a British  frigate,  that  Havre  was  no  longer  block- 
aded. In  attempting  to  enter  his  ship  was  seized,  but  the 
learned  judge  released  it  on  the  ground  that  under  the 
circumstances  no  offence  had  been  committed.  What  was 
deemed  a good  reason  for  leniency  nearly  a century  ago,  would 
certainly  be  regarded  as  a sufficient  answer  to  a captor’s 
claim  to-day. 

It  is  universally  admitted  that  vessels  driven  into  a block- 
aded port  by  stress  of  weather  are  not  liable  to  capture  ; but 
they  must  not  take  advantage  of  their  entry  to  dispose  of  any 
of  the  cargo  they  carry.  It  must  be  brought  out  intact  on 
their  departure.  The  courtesy  of  the  blockading  belligerent 
generally  allows  neutral  vessels  of  war  to  enter  and  depart 
freely ; but  the  better  opinion  appears  to  be  that  permission 
is  granted  as  a favor  and  cannot  be  claimed  as  a right.  In 
some  recent  wars  it  has  been  extended  to  mail  steamers  under 
guarantee  that  they  would  not  use  their  immunity  as  a cloak 
for  forbidden  trade.2 

§ 275. 

The  usual  penalty  for  breach  of  blockade  is  the  confisca- 
tion of  the  ship  and  cargo;  the  older  and  severer  practice, 
which  allowed  the  infliction  of  imprisonment  The  penalty  for 
or  even  death  on  the  crew,  having  been  discon-  breach  of  blockade, 
tinued  in  the  eighteenth  century.  The  offence  attaches  first 
and  foremost  to  the  ship,  and  therefore  it  alone  is  con- 
demned if  the  cargo  belongs  to  a different  owner  and  he 
did  not  know  that  the  port  of  destination  was  blockaded. 
But  the  burden  of  proof  of  ignorance  rests  upon  him.  The 

1 Robinson,  Admiralty  Reports,  II.,  114. 

2 Glass,  Marine  International  Law , p.  102. 


594 


BLOCKADE. 


presumption  is  that  he  knew  the  destination  of  the  vehicle 
which  carried  his  goods.  Lord  Stowell  stated  in  the  case 
of  the  Adonis 1 that,  when  a vessel  starts  for  an  innocent 
destination  and  during  the  voyage  the  captain  deviates  to 
a blockaded  port,  cargo  owned  by  a person  other  than  the 
owner  of  the  ship  may  be  released,  provided  the  existence  of 
the  blockade  was  not  known  at  the  commencement  of  the 
voyage.  In  the  case  of  the  Alexander ,2  however,  he  declined 
to  apply  this  doctrine  when  the  deviation  had  taken  place  to 
a port  known  to  be  under  blockade  when  the  vessel  started ; 
but  the  decision  turned  a good  deal  upon  special  circum- 
stances of  fraud,  and  possibly  it  would  not  be  followed  by 
a court  of  the  present  day.  The  captain  is  the  agent  of  the 
owners  of  the  ship,  not  of  the  owners  of  the  cargo  unless 
they  specially  appoint  him.  It  seems  hard,  therefore,  to 
make  them  responsible  for  his  wrong-doing,  without  allow- 
ing them  an  opportunity  of  showing  that  he  acted  in  entire 
independence  of  their  wishes. 

The  offence  of  breaking  blockade  clings  to  the  vessel  till 
the  termination  of  her  return  voyage.  Even  if  she  has  suc- 
ceeded in  slipping  in  and  out  in  safety,  she  may  be  captured 
on  her  way  home  by  any  cruiser  of  the  blockading  belligerent. 
This  was  the  rule  laid  down  by  the  British  Prize  Courts  at 
the  close  of  the  eighteenth  century ; 3 and  it  was  followed  by 
the  courts  of  the  United  States  in  the  American  Civil  War. 
But  all  liability  to  seizure  and  condemnation  comes  to  an 
end,  if  the  blockade  ceases  while  the  vessel  which  has  broken 
it  is  still  on  the  high  seas. 

§ 276. 

We  have  reserved  to  the  last  a consideration  of  the  doc- 
trine of  continuous  voyages  and  its  application  to  blockade. 

1 Robinson,  Admiralty  Reports,  V.,  262.  2 Ibid .,  IV.,  93. 

3 See  Lord  Stowell’s  judgment  in  the  case  of  the  Juffrow  Maria  Shrceder, 

Robinson,  Admiralty  Reports , III.,  163. 


BLOCKADE. 


595 


It  was  invented  by  the  British  Prize  Courts  during  the 
struggle  with  Revolutionary  and  Imperial  France,  in  order 
to  put  a stop  to  the  evasions  of  their  rule  that  The  doctrine  of 

. , , 1 , continuous 

. neutrals  might  not  trade  between  the  enemy  s voyages  and  its 
colonies  and  his  home  ports,  when  such  trade  blockade, 
had  been  closed  to  them  in  time  of  peace.  This  was  called 
The  Rule  of  War  of  1756,  from  the  date  at  which  it  was 
first  applied.  We  need  not  stop  to  discuss  the  dead  issue 
of  its  goodness  or  badness.  The  state  of  affairs  which  called 
it  into  being  is  not  likely  to  arise  again ; for  the  great  mari- 
time powers  have  long  ceased  to  monopolize  their  colonial 
trade,  and  the  second  article  of  the  Declaration  of  Paris 
gives  to  neutral  ships  the  right  of  carrying  enemy  property 
as  long  as  it  is  not  contraband  of  war.  The  rule  of  1756 
was  applied  in  the  war  which  broke  out  in  1793,  and  though 
relaxations  of  it  were  granted  from  time  to  time,  it  remained 
to  the  end  a great  hindrance  to  neutral  commerce.  The 
United  States  were  the  chief  sufferers.1  They  protested 
loudly  against  the  condemnation  of  American  vessels  under 
it ; and  the  ingenuity  of  their  merchants  and  seamen  was 
exercised  to  find  ways  of  trading  between  France  and  her 
colonies  in  spite  of  it.  A common  device  was  to  sail  from 
a colonial  port  to  an  American  port  and  from  thence  to 
Europe,  trade  between  the  enemy’s  colonies  and  America, 
and  between  America  and  Europe,  being  allowed  by  the 
British  authorities.  The  British  courts  in  return  elaborated 
a theory  that  in  such  cases  the  two  voyages  were  in  reality 
but  one  voyage,  in  which  a forbidden  cargo  was  carried  to 
a forbidden  destination.  They  regarded  such  circumstances 
as  the  payment  of  duties  at  American  ports  or  the  sale  of 
the  cargo  as  mere  blinds,  and  in  the  case  of  the  Maria  2 laid 
down  the  rule  that  the  offence  was  committed  unless  the 
goods  were  imported  into  the  common  stock  of  the  country 
to  which  they  were  first  carried. 

1 Wharton,  International  Law  of  the  United  States,  § 388. 

2 Robinson,  Admiralty  Reports,  V. , 367. 


596 


BLOCKADE. 


Whatever  may  be  thought  of  the  occasion  which  called 
the  theory  of  continuous  voyages  into  life,  there  can  be  no 
doubt  that  the  doctrine  itself  is  sound.  It  has  been  applied 
both  to  blockade  and  to  contraband.  The  British  Manual 
of  Naval  Prize  Law  issued  in  1888  states  that  when  a vessel 
is  ostensibly  bound  for  “a  neutral  or  unblockaded  enemy 
port,  while  she  is  in  reality  intended  after  touching  there  to 
go  on  to  a blockaded  port,  . . . her  destination  is  held  to  be 
for  the  blockaded  port  from  the  time  of  sailing.”  1 In  the 
American  Civil  War  the  courts  of  the  United  States  carried 
the  doctrine  a step  further,  and  condemned  neutral  ships 
captured  on  a voyage  to  a neutral  port,  not  only  when  there 
was  good  reason  to  believe  that  the  vessels  themselves  were 
intended  to  proceed  further  and  make  an  attempt  to  enter 
one  of  the  blockaded  harbors  of  the  Southern  Confederacy, 
but  also  when  it  was  suspected  that  their  cargoes  were  to  be 
transferred  in  the  neutral  port  to  other  steamers  in  order  to 
be  carried  by  them  through  the  blockading  squadron.  The 
question  arose  in  connection  with  Nassau,  a British  port  on 
New  Providence,  one  of  the  Bahama  Islands.  It  lies  within 
easy  reach  of  the, coast  of  Florida  and  Georgia;  and  when 
the  war  broke  out  it  sprang  into  sudden  activity  as  a centre 
of  forbidden  trade.  Blockade-runners  resorted  to  its  waters, 
and  made  it  the  starting-point  of  their  dashes  at  the  Southern 
ports.  The  courts  of  the  United  States  naturally  desired  to 
stop  these  unlawful  adventures ; and  in  the  attempt  to  do 
so  they  applied  and  enlarged  the  old  doctrine  of  continuous 
voyages.  The  soundness  of  their  extension  of  it  was  con- 
tested in  a group  of  cases,  the  most  important  of  which  was 
the  Springbok ,2  a British  vessel  captured  in  1868  on  a voyage 
from  Liverpool  to  Nassau,  and  condemned  along  with  her 
cargo  by  the  District  Court  of  New  York  on  the  ground 
that  her  true  destination  was  not  Nassau,  but  one  of  the 
blockaded  ports.  In  1866  the  Supreme  Court  reversed  this 

1 Holland,  Naval  Prize  Law , p.  38. 

2 Wallace,  Reports  of  the  U.  S.  Supreme  Court , V.,  1. 


BLOCKADE. 


597 


decision  as  far  as  the  ship  was  concerned,  having  come  to 
the  conclusion  that  her  papers  were  regular  and  her  real 
destination  neutral.  But  a majority  of  the  judges  confirmed 
the  condemnation  of  the  cargo,  because  they  were  satisfied 
that  its  owners  intended  it  to  be  sent  on  from  Nassau  in 
some  other  vessel  to  some  place  on  the  blockaded  Southern 
coast.  The  grounds  on  which  they  based  this  inference 
have  since  been  questioned.  But,  putting  aside  disputes  as 
to  fact,  the  statements  of  law  involved  in  the  decision  are 
open  to  grave  doubt.  If  a belligerent  may  capture  a neutral 
vessel  honestly  intended  for  a neutral  port,  and  condemn  her 
cargo  because  he  vaguely  suspects  it  will  be  transferred  to 
some  vessel  unknown  to  him,  and  sent  on  to  some  hostile 
destination  also  unknown  to  him,  a new  disability  has  been 
imposed  upon  neutral  commerce.  States  at  war  will  in  future 
be  able  to  establish  what  has  well  been  called  a blockade 
by  interpretation  of  any  neutral  port  situated  near  the  coast 
of  an  enemy.  For  instance,  in  the  present  (1894)  conflict 
between  Japan  and  China,  Japanese  cruisers  may,  if  the 
doctrine  we  are  discussing  be  correct,  capture  any  neutral 
merchantmen  bound  for  Hong-Kong,  on  the  plea  that  its 
cargo  may  possibly  be  sent  on  from  that  port  to  a blockaded 
harbor  of  China.  No  wonder  that  international  jurists  of 
all  countries,  including  the  United  States,  shrunk  from  con- 
sequences such  as  these,  and  condemned  the  decision  in  the 
Springbok  case  with  a close  approach  to  unanimity.  Many 
of  them  have  published  their  views ; and  in  1882  a com- 
mission of  the  Institut  de  droit  International  voted  without  a 
dissentient  voice  that  the  judgment  was  subversive  of  an 
established  rule  of  maritime  warfare  and  a serious  inroad 
on  the  rights  of  neutrals.1  Its  authority  has  been  seriously 
impaired  by  this  chorus  of  disapproval.  The  utmost  that 

1 An  excellent  account  of  the  case  of  the  Springbok  and  the  controversy 
to  which  it  gave  rise  will  be  found  in  Wharton,  International  Law  of  the 
United  States,  § 362,  and  in  Travers  Twiss,  Belligerent  Bight  on  the  High 
Seas,  pp.  18—32. 


598 


BLOCKADE. 


can  be  allowed  is  that,  if  the  captors  have  clear  and  definite 
proof  that  the  destination  of  the  cargo  is  hostile  while  that  of 
the  vessel  is  neutral,  the  courts  may  separate  between  the  two 
and  condemn  the  former  while  releasing  the  latter.  Further 
it  is  impossible  to  go  without  inflicting  grave  injustice  on 
neutral  trade. 


CHAPTER  VI. 


CONTRABAND  TRADE. 

§ 277. 

Every  belligerent  may  capture  goods  of  direct  and  imme- 
diate use  in  war,  if  he  is  able  to  intercept  them  on  their 
passage  to  his  enemy  in  any  place  where  it  is 

ici  , . ^ i The  nature  of 

lawful  to  carry  on  hostilities.  But  neutral  contraband  trade. 

^ Neutral  states  are 

merchants  may  trade  in  arms,  ammunition  not  bound  to 

. . stop  it. 

and  stores  in  time  of  war,  as  well  as  in  time 
of  peace.  Thus  a conflict  of  rights  arises ; and  it  is  the  task 
of  International  Law  to  make  some  compromise  between  the 
admitted  claims  of  belligerents  on  the  one  hand  and  neu- 
trals on  the  other.  This  it  does  by  allowing  the  subjects  of 
neutral  states  to  carry  contraband  to  either  belligerent,  but 
insisting  that  they  shall  do  so  at  their  own  risk.  Their 
government  is  not  bound  to  restrain  them  from  trading  in 
the  forbidden  goods,  neither  has  it  any  right  to  interfere  on 
their  behalf  if  the  articles  in  question  are  captured  by  one 
belligerent  on  their  way  to  the  other.  Whenever  a trade 
in  contraband  of  war  reaches  large  dimensions,  the  state 
whose  adversary  is  supplied  by  means  of  it  is  apt  to  com- 
plain. It  reproaches  the  government  of  the  offending 
vendors  with  neglect  of  the  duties  of  neutrality,  and 
argues  that  friendship  and  impartiality  alike  demand  the 
stoppage  of  a traffic  which  supplies  its  foe  with  the  sinews 
of  war.  But  it  invariably  receives  in  reply  a reminder  that 
the  practice  of  nations  imposes  no  such  obligation  upon  neu- 


600 


CONTRABAND  TRADE. 


tral  powers.  They  are  bound  to  prevent  the  departure  of 
armed  expeditions  from  their  shores  and  the  supply  of 
fighting  gear  to  belligerent  vessels  in  their  ports.  When 
this  is  done,  the  utmost  that  can  be  expected  of  them  in 
the  matter  of  ordinary  business  transactions  is  that  they 
shall  warn  their  subjects  of  the  risks  run  by  carriers  of 
contraband  merchandise,  and  give  notice  that  those  who 
incur  them  will  not  be  protected  by  the  force  or  the  influ- 
ence of  the  state.  Several  important  international  contro- 
versies have  been  conducted  on  these  lines.  Thus,  when  in 
1793  Great  Britain  complained  of  the  sale  of  arms  and 
accoutrements  to  an  agfent  of  the  French  Government  in 
the  United  States,  Jefferson,  who  was  the  Secretary  of 
State  in  Washington’s  Cabinet,  replied  that  American 
citizens  “have  always  been  free  to  make,  vend  and  export 
arms.  It  is  the  constant  occupation  and  livelihood  of  some 
of  them.  To  suppress  their  callings,  the  only  means,  per- 
haps, of  their  subsistence,  because  a war  exists  in  foreign 
and  distant  countries,  in  which  we  have  no  concern,  would 
scarcely  be  expected.  It  would  be  hard  in  principle  and 
impossible  in  practice.  The  law  of  nations,  therefore, 
respecting  the  rights  of  those  at  peace,  does  not  require 
from  them  such  an  internal  derangement  in  their  occupa- 
tions. It  is  satisfied  with  the  external  penalty  pronounced 
in  the  President’s  proclamation,  that  of  confiscation  of  such 
portion  of  these  arms  as  shall  fall  into  the  hands  of  the 
belligerent  powers  on  their  way  to  the  ports  of  their  ene- 
mies. To  this  penalty  our  citizens  are  warned  that  they 
will  be  abandoned.”1  These  words  were  quoted  on  behalf 
of  Great  Britain  when  the  positions  of  the  two  powers  were 
reversed,  and  the  United  States,  in  the  case  submitted  by 
them  to  the  Geneva  Arbitrators  in  1872,  ranked  among 
their  causes  of  complaint  against  the  British  Government 
its  refusal  to  put  a stop  to  the  trade  in  contraband  of  war 
carried  on  between  England  and  the  ports  of  the  Southern 


1 Wharton,  International  Law  of  the  United  States,  § 391. 


CONTRABAND  TRADE. 


601 


Confederacy.1  On  this  occasion,  as  in  1793,  the  answer  of 
the  neutral  was  deemed  conclusive.  The  British  Govern- 
ment did  not  press  its  complaint  against  the  administration 
of  Washington,  and  the  Board  which  arbitrated  on  the  Ala- 
bama Claims  gave  no  damages  to  the  United  States  in 
respect  of  the  purchase  of  arms  in  England  by  Confederate 
agents.  Indeed  the  conduct  of  commercial  states  when 
neutral  puts  out  of  court  any  complaints  they  may  make 
when  belligerent.  Prussia,  for  instance,  whose  merchants 
had  conducted  an  enormous  trade  in  contraband  goods  across 
her  eastern  frontiers  during  the  Crimean  War,  denounced  in 
vigorous  language  the  conduct  of  the  British  authorities  in 
permitting  English  firms  to  sell  arms  and  ammunition  to 
France  in  1870. 2 Moreover,  belligerents  themselves  often 
take  advantage  of  that  freedom  of  trade  they  deem  mon- 
strous and  unfriendly  when  it  operates  to  the  benefit  of 
their  foes.  The  United  States  Government  sent  agents  to 
England  for  the  purchase  of  munitions  of  all  kinds  during 
the  first  two  years  of  the  struggle  with  the  revolted  South. 
France  in  1795  complained  loudly  of  the  capture  of  neutral 
ships  laden  with  supplies  of  food  for  her  suffering  people; 
but  in  1885  she  claimed  the  right  to  seize  and  confiscate 
cargoes  of  rice  carried  by  neutrals  to  certain  ports  of  China, 
on  the  ground  that  rice  was  an  important  article  in  the  diet 
of  the  Chinese  people.  It  was  then  the  turn  of  Great  Brit- 
ain to  resist  the  attempt.  She  gave  notice  that  she  would 
not  recognize  the  validity  of  any  condemnations  of  her  mer- 
chantmen engaged  in  the  rice  trade,  unless  they  were  carry- 
ing the  grain  to  Chinese  camps  or  places  of  naval  or  military 
equipment.3  Fortunately  the  war  came  to  an  end  before  a 
case  arose;  and  it  is  hardly  likely  that  France  will  renew 

1 American  Case,  Pt.  IV.  ; British  Counter  Case,  Pt.  IV. 

2 British  State  Papers,  Franco-German  War,  No.  3 (1870),  pp.  72,  73, 
75-77,  97. 

3 Documents  Diplomatiques,  Affaires  de  Chine  (1885),  pp.  29-32  ; British 
State  Papers,  France,  No.  1 (1885),  pp.  14-21. 


602 


CONTRABAND  TRADE. 


claims  so  contrary  to  justice  and  to  her  own  previous  con- 
tentions. It  would  be  easy  to  multiply  instances.  The 
conduct  of  states  in  the  matter  of  contraband  trade  has 
been  guided  far  more  by  the  self-interest  of  the  moment 
than  by  any  considerations  of  principle.  But  amid  all  the 
inconsistencies  of  international  recrimination  one  fact  stands 
out  clear  and  indubitable.  No  powerful  neutral  state  has 
ever  interfered  to  stop  a trade  in  arms  and  ammunition  car- 
ried on  by  its  subjects  with  agents  of  a belligerent  govern- 
ment. No  belligerent  has  ever  been  prevented  by  moral 
scruples  or  legal  prohibitions  from  buying  war  material  in 
neutral  markets.  It  is  impossible,  therefore,  to  avoid  the 
conclusion  that  the  only  restraint  on  such  a trade  known  to 
International  Law  is  the  liability  of  contraband  to  capture, 
even  under  a neutral  flag.  So  clear  is  this  that  nearly  every 
writer  of  repute  embodies  it  in  his  account  of  the  law  of 
contraband.  The  little  band  who  hold  that  neutral  powers 
are  bound  to  prohibit  the  sale  of  arms  and  other  instruments 
.of  warfare  within  their  territory  to  belligerent  agents,  base 
their  arguments  upon  what  they  deem  considerations  of 
justice  and  equity,  which  in  their  judgment  override  the 
practice  of  states.1  Others,  who  do  not  feel  at  liberty 
to  construct  their  systems  without  some  reference  to  the 
arrangements  of  international  society,  but  nevertheless 
desire  to  place  as  many  restrictions  as  possible  upon  trade 
in  contraband,  have  drawn  a distinction  between  large  and 
small  commercial  transactions.2  The  latter  they  regard  as 
a continuation  of  such  ordinary  trade  as  may  have  existed 
before  the  war,  whereas  the  former  are  called  into  existence 
by  the  war  and  cannot  be  considered  as  in  any  sense  a pro- 
longation of  the  previous  operations  of  neutral  merchants. 
If  these  statements  are  to  be  regarded  as  an  expression  of 
existing  law,  it  is  sufficient  to  say  that  the  rule  they  advo- 

1 Hautefeuille,  Droits  des  Nations  Neutres,  Vol.  II.,  Tit.  VIII.,  Sec.  III.; 
Phillimore,  III.,  § CCXXX. 

- Bluntschli,  Droit  International  Codifie,  § 76. 


CONTRABAND  TRADE. 


603 


cate  has  never  been  adopted.  If,  on  the  other  hand,  they 
are  held  to  set  forth  what  the  law  ought  to  be,  we  may 
remark  that  the  difficulty  of  drawing  a line  between  a small 
trade  and  a large  one  is  so  great  as  to  amount  to  impossi- 
bility. Moreover,  it  is  by  no  means  certain  that  interna- 
tional trade  in  arms  on  a large  scale  is  confined  to  times  of 
war.  A firm  like  Krupp  of  Essen  makes  artillery  for  half 
the  armies  of  the  civilized  world  during  periods  of  profound 
peace.  And  lastly,  it  may  be  argued  that  the  burden  placed 
by  the  proposed  rule  upon  neutral  governments  would  be 
too  great  for  them  to  bear.1  The  stoppage  of  large  ship- 
ments of  arms  for  belligerent  purposes  from  the  ports  of 
a great  commercial  country  would  require  for  its  effective 
enforcement  an  army  of  spies  and  informers.  And  when 
a state  had  dislocated  its  commerce  and  roused  the  anger 
of  its  trading  classes,  it  might  possibly  find  itself  arraigned 
before  an  international  tribunal  for  lack  of  “ due  diligence,  ” 
and  cast  in  damages  because  a few  cargoes  had  slipped 
through  the  cordon  it  maintained  against  its  own  subjects. 
The  growth  of  a moral  sentiment  against  making  money  out 
of  the  miseries  of  warfare  may  in  time  check  the  eagerness 
of  neutral  merchants  to  engage  in  contraband  trade.  Mean- 
while belligerents  must  trust  to  the  efficiency  of  their  own 
measures  of  police  on  the  high  seas  to  keep  cargoes  of  war- 
like stores  out  of  the  ports  of  their  enemies.  The  proposal 
that  neutral  governments  should  be  charged  with  the  duty 
of  preventing  shipments  of  contraband  goods  from  their 
ports  to  a belligerent  destination  has  been  revived  in  a 
recent  report  presented  to  the  Institut  de  Droit  Inter- 
national; but  it  has  met  with  a cold  reception.2  Neither 
jurists  nor  statesmen  are  prepared  to  impose  this  additional 
burden  upon  the  condition  of  neutrality. 

1 Westlake,  Article  in  Bevue  de  Droit  International , II.,  614-635. 

2 Rapport  par  MM.  Kleen  et  Brusa  ; Bevue  de  Droit  International,  XXVI., 
401  et  seq. 


604 


CONTE AB AND  TRADE. 


§ 278. 

Since  the  law  of  nations  gives  to  states  at  war  the  right 
of  stopping  neutral  trade  in  contraband  goods  by  the  use  of 
armed  force  on  the  high  seas,  it  is  obvious  that 

What  articles  are  0 

contraband  of  some  general  agreement  as  to  the  articles  which 
come  under  the  description  of  contraband  is 
necessary  in  order  to  avoid  constant  friction.  But  unfortu- 
nately no  agreement  exists  except  with  regard  to  a very 
small  portion  of  the  large  field  to  be  covered.  Arms  and 
munitions  of  war  are  recognized  as  being  contraband. 
Here,  however,  unanimity  ends.  Some  doubt  has  been 
expressed  even  with  regard  to  the  materials  from  which 
gunpowder,  dynamite  and  other  means  of  destruction  are 
made,1  though  the  vast  majority  of  authorities  class  them 
along  with  weapons  and  ammunition.  Beyond  this  point 
all  is  confusion,  and  there  is  scarcely  a single  article  as  to 
which  the  greatest  diversity  of  opinion  and  practice  does 
not  prevail.  Grotius  divided  commodities  into  three  classes : 
things  of  direct  and  immediate  use  in  war,  things  useless 
for  warlike  purposes,  and  things  useful  in  war  and  peace 
indifferently.  The  first  were  always  contraband,  the  second 
never,  and  with  regard  to  the  third,  res  ancipitis  usus,  the 
circumstances  of  the  contest  were  to  be  considered.2  This 
classification  is  valuable,  and  would  be  more  so  were  the 
various  kinds  of  goods  it  embraces  as  plainly  marked  off 
from  each  other  as  birds  and  fishes  or  grain  and  trees.  But 
there  are  no  clear  lines  of  demarcation  between  them. 
Cannon  are  always  useful  in  war;  but  what  of  nitro- 
glycerine, which  may  be  used  for  blasting  in  mines  or  a 
dozen  other  peaceful  purposes?  Millinery  is  useless  in 
war;  but  what  of  cloth,  which  may  make  tunics  for  soldiers 
as  well  as  mantles  for  fashionable  ladies  ? And  with  regard 
to  the  third  class,  which  seems  to  have  grown  so  rapidly  at 

1 Hautefeuille,  Droits  des  Nations  Neutres,  Vol.  II.,  Tit.  VIII.,  Sec.  II.,  § 3. 

2 De  Jure  Belli  ac  Pads,  III.,  I.,  V. 


CONTRABAND  TRADE. 


60o 

the  expense  of  the  other  two,  what  circumstances  are  to  be 
considered  in  the  attempt  to  determine  whether  any  partic- 
ular article  comprised  in  it  is  contraband  or  not?  Quot 
homines , tot  sententice.  Whichever  way  we  turn  we  meet 
nothing  but  disagreement  and  inconsistency.  Publicist 
differs  from  publicist  and  state  from  state.  Even  the  same 
state  champions  one  policy  at  one  time  and  another  at  an- 
other, and  places  different  lists  of  contraband  goods  in  dif- 
ferent treaties  negotiated  during  the  same  period.  A full 
account  of  these  diversities  is  given  by  Hall,1  and  to  it  the 
student  is  referred  if  he  desires  to  make  himself  acquainted 
with  their  multitudinous  details.  As  an  example  of  what 
has  taken  place  we  may  refer  to  the  action  of  Great  Britain 
and  the  United  States  with  regard  to  two  out  of  the  many 
classes  of  disputed  goods.  The  treaty  of  1794  between 
these  powers  included  naval  stores  in  its  list  of  contraband 
articles.  Yet  in  the  next  year  the  United  States  expressly 
excluded  them  in  its  treaty  with  Spain,  following  thereby 
its  own  precedents  in  the  French  treaty  of  1778,  the  Dutch 
treaty  of  1782  and  the  Swedish  treaty  of  1788. 2 Horses 
were  not  included  in  the  list  of  the  British  treaty  of  1794; 
but  they  are  expressly  mentioned  in  the  treaty  of  1782  with 
the  United  Netherlands,  though  by  its  twenty-fourth  article 
naval  stores  were  ruled  out  in  the  most  emphatic  terms. 
The  French  treaty  of  1778  included  them.  The  French 
treaty  of  1800  excluded  them.  They  are  mentioned  as 
contraband  in  the  treaty  with  Sweden  of  1783  and  the  treaty 
with  Spain  of  1795.  Thejr  are  not  mentioned  in  the  Prus- 
sian treaties  of  1785  and  1799. 3 During  the  present  cen- 
tury a list  of  contraband  goods  has  been  inserted  in  many  of 
the  treaties  of  the  United  States,  the  general  tendency  being 
towards  the  inclusion  of  horses  and  the  exclusion  of  naval 
stores.  Great  Britain  on  the  other  hand  has  preferred  to 

1 International  Law,  Pt.  IV.,  Ch.  v. 

2 Treaties  of  the  United  States,  pp.  304,  389,  756,  1011,  1045. 

3 Ibid.,  pp.  303,  389,  756,  903,  911,  1011,  1044. 


606 


CONTRABAND  TRADE. 


keep  herself  free  from  special  agreements  on  the  subject. 
Since  the  close  of  the  last  century  she  has  entered  into 
stipulations  with  regard  to  it  very  sparingly.  But  small  in 
number  as  are  her  treaty-lists  of  contraband,  they  are  not 
consistent  with  each  other.  Both  horses  and  naval  stores, 
for  instance,  were  declared  to  be  subject  to  confiscation  in  her 
treaty  of  1810  with  Portugal,  but  seventeen  years  after  she 
agreed  with  Brazil  to  omit  the  former  while  retaining  the 
latter.1 

From  these  examples,  which  could  be  increased  in  number 
to  an  enormous  extent  if  we  examined  the  diplomatic  history 
of  all  civilized  states,  it  is  evident  that  no  authoritative  list 
of  contraband  articles  can  be  compiled  from  treaties.  An 
examination  of  the  works  of  publicists  reveals  a similar 
divergence  and  leads  to  a corresponding  conclusion.  But 
amid  conflicting  views  it  is  possible  to  discern  two  main 
tendencies.  The  first,  which  favors  a long  list  of  contra- 
band goods  and  leans  to  severity  in  dealing  with  them,  may 
be  called  English,  since  its  chief  defenders  are  to  be  found 
among  the  jurists  and  statesmen  of  Great  Britain.  The 
second  deems  comparatively  few  articles  to  be  contraband 
and  is  inclined  to  treat  all  doubtful  cases  with  leniency. 
As  its  chief  supporters  are  French,  German  and  Italian 
writers,  it  may  be  called  European.  In  this  matter,  as  in 
so  many  others  connected  with  maritime  law,  America  occu- 
pies an  intermediate  position.  In  her  treaties  and  her  state 
papers  she  has  generally  followed  European,  and  especially 
French,  models ; while  her  courts  and  her  legal  luminaries 
have  as  a rule  supported  English  views. 

The  most  authoritative  exposition  of  the  English  doctrine 
is  to  be  found  in  the  Manual  of  Naval  Prize  Law , drawn  up 
for  the  British  Admiralty  by  Professor  Holland  of  Oxford, 
in  1888.  It  divides  contraband  articles  into  Goods  Abso- 
lutely Contraband  and  Goods  Conditionally  Contraband. 

1 G.  F.  de  Martens,  Nouveau  Eecueil,  Supplement , VII.,  211,  and  XI., 
485,  486. 


CONTRABAND  TRADE. 


607 


Among  the  former  it  reckons  not  only  arms  of  all  kinds 
and  the  machinery  for  manufacturing  them,  ammunition  and 
the  materials  of  which  it  is  made,  gun-cotton  and  clothing 
for  soldiers,  but  also  military  and  naval  stores,  including  in 
the  latter  marine  engines  and  their  component  parts,  such 
as  cylinders,  shafts,  boilers  and  fire-bars.  These  things  are 
contraband  always  and  in  every  case.  They  are  condemned 
on  mere  inspection,  provided,  of  course,  that  they  are  bound 
to  an  enemy  destination.  They  carry  their  guilt  on  their 
face,  and  are  invariably  liable  to  seizure  and  confiscation. 
But  in  addition  to  these  there  are  other  large  classes  of 
goods  which  may  be  regarded  as  contraband  under  some  cir- 
cumstances and  non-contraband  under  others.  They  are  not 
to  be  condemned  merely  for  being  what  they  are.  It  is 
necessary  to  know  more  about  them  than  their  nature  and 
description.  All  manner  of  collateral  circumstances  must 
be  taken  into  account  in  deciding  their  fate.  Whatever 
raises  a presumption  that  they  will  be  used  for  warlike  pur- 
poses tells  against  them.  Whatever  tends  to  show  that  they 
will  be  consumed  by  peaceful  non-combatants  tells  in  their 
favor.  It  is  for  this  reason  that  Professor  Holland  calls 
them  goods  conditionally  contraband.  He  enumerates 
among  them  provisions,  money,  coals,  horses  and  mate- 
rials for  the  construction  of  railways  and  telegraphs.1  It 
is  obvious  that  the  noxious  or  innocuous  character  of  such 
things  as  these  depends  upon  the  use  to  which  they  are 
applied.  Great  Britain  contends  that  they  may  lawfully 
suffer  capture  and  condemnation  when  surrounding  circum- 
stances make  it  reasonably  clear  that  they  will  be  used  for 
purposes  of  warfare.  The  immediate  destination  of  the 
goods  is  held  to  be  the  best,  though  not  the  only,  test  of 
their  final  use.  In  the  case  of  the  Yonge  Margaretha ,2  Lord 
Stowell  condemned  a cargo  of  cheeses  bound  for  Brest,  a port 
of  naval  equipment,  the  cheeses  being  such  as  were  used  in 

1 Manual  of  Naval  Prize  Law , p.  20. 

2 Robinson,  Admiralty  Reports , I.,  194. 


608 


CONTRABAND  TRADE. 


the  French  navy.  Should  the  voyage  be  intended  to  termi- 
nate at  the  enemy’s  fleet,  or  a place  where  a portion  of  his 
army  is  encamped,  there  can  be  no  doubt  that  condemnation 
would  follow  capture.  The  views  thus  expressed  are  spoken 
of  collectively  as  the  Doctrine  of  Occasional  Contraband. 

This  doctrine  is  strongly  opposed  by  the  publicists  of  the 
European  continent.  One  of  the  most  recent  of  them,  M. 
Richard  Kleen,  in  a work  published  in  1893,  examines  the 
English  decisions  and  pronounces,  against  their  validity.1 
He  holds  nothing  to  be  contraband  but  objects  expressly 
made  for  war  and  fitted  for  immediate  employment  in  war- 
like operations.  These  objects  in  their  completed  form, 
or  in  parts  which  can  be  fitted  together  without  a further 
process  of  alteration  or  manufacture,  are  liable  to  capture  if 
found  on  their  journey  to  an  enemy  destination.2  But  he 
adds  that  articles  which  do  not  come  under  these  categories 
can  never  under  any  circumstances  become  lawful  prize 
as  contraband  of  war.  He  combats  with  much  vigor  the 
views  set  forth  in  the  Manual  of  the  British  Admiralty,  and 
declines  to  accept  proof  of  the  likelihood  of  hostile  use  as  a 
sufficient  reason  for  the  seizure  of  goods  capable  in  their  own 
nature  of  innocent  employment.  Other  continental  writers 
are  not  so  consistent.  While  they  question  the  validity  of 
the  doctrine  of  occasional  contraband,  they  nevertheless 
make  admissions  which  involve  its  principle.  Bluntschli, 
for  instance,  declares  that  such  things  as  engines,  horses 
and  coal  may  be  accounted  contraband  if  it  can  be  shown 
that  they  are  destined  for  a warlike  use.3  Heffter  ranks 
them  among  prohibited  goods  when  their  transport  to  a 
belligerent  by  a neutral  affords  assistance  manifestly  hos- 
tile in  its  nature.4  Ortolan  maintains  that  res  ancipitis 
usus  may  be  treated  as  contraband  in  very  exceptional  cases ; 

1 Contrebande  de  Guerre,  pp.  30-37. 

2 Ibid.,  pp.  19-30,  32. 

8 Droit  International  Codifie,  § 805. 

4 Droit  International , § 160. 


CONTRABAND  TRADE. 


609 


but  he  excepts  from  this  exception  provisions  and  other 
objects  of  first  necessity.1  Kliiber  admits  the  existence 
of  doubtful  cases,  which  must  be  ruled  by  surrounding 
circumstances.2  These  opinions  concede  all  that  is  essen- 
tial in  the  British  position.  In  order  to  establish  the  doc- 
trine of  occasional  contraband  it  is  not  necessary  to  show 
that  every  rule  of  the  English  Prize  Courts  is  correct. 
Harsh  decisions  may  have  been  given  from  time  to  time. 
The  conclusion  that  the  captured  goods  were  really  des- 
tined for  warlike  use  may  have  been  reached  in  many 
cases  on  the  strength  of  presumptions  insufficient  to  bear 
the  weight  of  the  superstructure  reared  upon  them.  All 
this  may  be  admitted;  and  yet  the  fact  remains  that,  by 
consent  so  general  as  to  be  almost  universal,  there  are  cir- 
cumstances which  will  justify  the  seizure  and  condemnation 
as  contraband  of  goods  which  are  ordinarily  innocent.  Pro- 
visions are  an  excellent  example.  As  a rule  they  are  not 
captured ; but,  if  they  are  stopped  on  their  way  to  an  enemy’s 
force  or  a besieged  place,  they  are  taken  without  hesitation 
or  scruple.  This  is  the  universal  custom  of  belligerents, 
and  the  vast  majority  of  publicists  recognize  its  legality. 
In  doing  so,  they  admit  in  effect  the  proposition  that  what 
is  not  contraband  at  one  time  and  under  one  set  of  conditions 
is  contraband  at  another  time  and  under  another  set  of  con- 
ditions. When  this  is  allowed,  the  doctrine  of  occasional 
contraband  is  granted,  and  nothing  remains  but  to  settle  its 
application.  But  it  is  just  at  this  point  that  difficulties 
which  have  hitherto  proved  insuperable  arise.  Great  Brit- 
ain places  many  articles  ancipitis  usus  in  her  list  of  goods 
absolutely  contraband.  Naval  stores  supply  a case  in  point. 
Masts  and  spars,  boiler-plates  and  screw-propellers  are 
needed  by  peaceful  merchantmen  as  well  as  by  armed 
cruisers.  Yet  the  Admiralty  Manual  classes  them  with 
arms  and  ammunition,  and  orders  their  capture  if  bound 

1 Diplomatic  de  la  Mer,  II.,  179. 

2 Droit  des  Gens  Moderne  de  V Europe,  § 288.  j 


610 


CONTRABAND  TRADE. 


to  a hostile  port,1  a rule  which,  naturally  enough,  finds 
no  favor  in  the  eyes  of  continental  publicists. 

As  long  as  the  subject  remains  in  its  present  condition 
nothing  can  be  looked  for  but  constant  bickering  between 
belligerents  and  neutrals.  If  a great  maritime  war  broke 
out,  powerful  commercial  states  might  find  themselves 
drawn  into  hostilities  almost  against  their  will.  It  is 
much  to  be  wished  that  the  leading  powers  of  the  civilized 
world  would  hold  a friendly  Congress  to  deal  with  the 
question.  The  only  way  to  settle  it  is  by  common  agree- 
ment, embodied  in  a great  international  instrument  which 
should  be  subject  to  revision  from  time  to  time.  The  prog- 
ress of  science  makes  many  weapons  obsolete,  and  con- 
stantly adds  new  means  of  destruction  to  the  resources  of 
warfare.  We  sometimes  find  bucklers  and  coats  of  mail 
among  the  contraband  articles  enumerated  in  the  treaties  of 
the  last  century;2  but  there  is  no  mention  of  dynamite, 
which  is  a recent  invention,  nor  of  boilers,  paddle-wheels 
and  screw-propellers,  the  application  of  steam  to  navigation 
being  unknown  till  1807.  A hundred  years  ago  balloons 
were  scientific  toys.  To-day  they  are  part  of  the  equipment 
of  every  well-found  army.  With  every  year  that  passes, 
speed  becomes  more  important  in  naval  warfare,  and  conse- 
quently fuel  approximates  more  closely  to  the  position  of  a 
munition  of  war.  All  these  changes  raise  questions  far 
more  easy  to  state  than  to  settle.  They  have  but  added  to 
the  confusion  existing  beforehand.  No  solution  of  them 
has  met  with  general  acceptance.  A brief  account  of  the 
differences  of  opinion  which  have  arisen  with  regard  to  coal 
will  suffice  to  demonstrate  the  impossibility  of  arriving  at 
any  general  rule  in  the  absence  of  an  international  agree- 
ment. The  Crimean  War  was  the  first  maritime  struggle 
of  importance  in  which  vessels  of  war  were  propelled  by 

1 Holland,  Manual  of  Naval  Prize  Law , p.  19. 

2 e.g.  the  treaty  of  1778  between  France  and  the  United  States.  See 
Treaties  of  the  United  States , p.  303. 


CONTRABAND  TRADE. 


611 


steam-power;  and  during  its  continuance  the  question  of 
the  contraband  character  of  coal  was  first  mooted.  Great 
Britain  regarded  it  as  an  article  ancipitis  usus  and  applied 
to  it  her  doctrine  of  occasional  contraband.1  She  main- 
tained the  same  view  as  a neutral  in  the  war  of  1859 
between  France  and  Piedmont  on  the  one  hand  and  Aus- 
tria on  the  other.  The  Ministry  of  the  day  informed  Brit- 
ish subjects  that  coal  might  under  certain  circumstances 
be  lawfully  treated  as  contraband,  and  warned  them  that  if 
they  traded  in  it  with  belligerents  they  did  so  at  their  own 
risk.  A few  days  later  the  French  and  Piedmontese  Gov- 
ernments published  formal  notifications  that  they  would  not 
treat  coal  as  contraband,  and  all  through  the  war  they  re- 
frained from  seizing  it,  though  their  maritime  preponder- 
ance enabled  them  to  deal  as  they  pleased  with  cargoes 
destined  for  Austrian  ports.2  Thus  the  usual  positions  of 
neutral  and  belligerent  were  reversed,  and  the  latter  applied 
a less  rigorous  rule  than  the  former  was  willing  to  concede. 
In  the  American  Civil  War  the  Federal  Government  adopted 
the  British  view,  though  Mr.  Cass,  as  Secretary  of  State, 
had  argued  against  it  in  1859.  The  courts  of  the  United 
States  have  taken  the  same  line  as  the  executive ; and  there 
can  be  no  doubt  that  the  two  great  English-speaking  nations 
stand  together  in  this  matter.3  Their  position,  or  a still 
stronger  one,  is  held  by  Germany,  whose  statesmen  in  1870 
were  not  content  with  the  willingness  of  the  British  Govern- 
ment to  regard  as  contraband  cargoes  of  coals  bound  for  the 
French  fleet  in  the  North  Sea,  but  claimed  that  all  export  of 
coal  to  the  ports  of  France  should  be  prohibited.  France 
on  this  occasion  repeated  her  declaration  of  1859  that  coal 
could  not  under  any  circumstances  be  regarded  as  contra- 
band.4 She  is  definitely  pledged  to  this  view,  and  a consid- 

1 Wheaton,  International  Law  (Dana’s  ed.),  p.  632,  note. 

2 Kliiber,  Droit  des  Gens  Moderne  de  l' Europe,  § 288,  note. 

8 Wharton,  International  Law  of  the  United  States,  § 369  ; Glass,  Marine 

International  Law,  pp.  113-132,  4 Hall,  International  Law , § 244. 


612 


CONTRABAND  TRADE. 


erable  number  of  less  important  states  have  followed  her 
lead.  Russia,  too,  has  adopted  the  more  lenient  doctrine 
in  the  most  unequivocal  manner.  In  December,  1884,  her 
representative  at  the  West  African  Conference  went  out  of 
his  way  to  declare  that  she  did  not  mean  to  include  coal  in 
the  articles  excepted,  as  contraband,  from  the  general  free- 
dom of  navigation  decreed  for  the  Congo  even  in  time  of 
war.1 

No  ingenuity  can  reconcile  divergencies  such  as  these; 
and  while  they  exist  they  are  a menace  to  the  peace  of  the 
civilized  world.  It  might  be  possible  for  states  to  arrive  at 
some  agreement  on  the  subject  of  contraband,  if  they  could 
settle  on  a basis  of  discussion  before  they  came  together  in 
conference.  Could  not  such  a basis  be  found  in  a frank 
acceptance  by  other  powers  of  the  British  and  American 
doctrine  of  occasional  contraband,  in  return  for  the  transfer 
to  the  conditionally  contraband  class  of  many  articles  now 
deemed  absolutely  contraband  by  Great  Britain?  If  these 
mutual  concessions  were  once  made,  no  insuperable  diffi- 
culty would  be  presented  by  the  further  task  of  deciding 
what  circumstances  connected  with  the  destination  of  the 
vessel  and  the  special  needs  of  the  enemy  should  be  deemed 
sufficient  to  support  the  presumption  that  the  goods  were 
destined  for  an  essentially  warlike  use,  and  were  therefore  fit 
subjects  of  belligerent  capture.  Thus  two  lists  would  come 
into  existence,  not  at  the  dictation  of  belligerents  anxious 
to  make  the  utmost  use  of  their  naval  power,  or  neutrals  jeal- 
ous of  any  interference  with  a lucrative  commerce,  but  as 
the  result  of  full  discussion,  carried  on  with  the  view  of 
arriving  at  conclusions  just  to  all.  The  first  list  would  con- 
sist of  those  things  which  were  contraband  in  their  own 
nature,  and  liable  to  seizure  and  condemnation  if  found  on 
their  voyage  to  an  enemy  destination.  It  might  with  advan- 
tage be  confined  to  arms  and  their  component  parts,  together 
with  ammunition  and  the  materials  from  which  it  is  made. 

1 British  State  Papers,  Africa  No.  4 {1885),  pp.  132,  133,  311. 


CONTRABAND  TRADE. 


613 


The  second  list  should  include  all  articles  capable  of  mili- 
tary use.  They  would  be  deebied  contraband  of  war  only 
when  it  was  clear  they  were  about  to  be  employed  for  warlike 
purposes  and  were  not  likely  to  supply  the  needs  of  a 
peaceful  population.  Both  lists  would  require  periodical 
revision,  for  which  provision  should  be  made  in  the  inter- 
national document  which  called  them  into  existence. 


§ 279. 

Few  subjects  in  the  whole  range  of  International  Law 
have  given  rise  to  more  loose  writing  and  thinking  than 
that  on  which  we  are  at  present  engaged.  It  The  essentials  of 
therefore  becomes  necessary  to  use  careful  analy-  of  contraband3,1461" 
sis  in  order  to  discover  exactly  what  it  is  that  trade' 
constitutes  the  offence  which  a belligerent  may  deal  with  in 
the  manner  described  in  the  beginning  of  this  chapter.  We 
must  note  in  the  first  place  that  neutral  traders  are  free,  to 
sell  arms  and  other  contraband  goods  within  the  neutral 
territory  to  agents  of  the  warring  powers.  It  is  only  when 
they  export  such  articles  to  one  belligerent  that  the  right  of 
capture  is  acquired  by  the  other.  Transport  within  the  neu- 
tral territory  is  not  forbidden ; but  it  is  an  offence  to  send 
contraband  of  war  across  the  frontier  to  a belligerent,  whether 
by  land  or  by  sea.  In  other  words  the  commerce  passif  of 
recent  continental  writers  is  allowed,  but  the  commerce  actif 
is  left  to  the  mercy  of  the  belligerent  who  suffers  from  it. 
This  is  an  old  and  well-established  rule.  Bynkershoek  lays 
it  down  in  the  terse  sentence,  Non  recte  vehamus , sine  fraude 
tamen  vendimus.1  Great  Britain  has  always  acted  upon  it. 
The  United  States  adopted  it  at  the  commencement  of  their 
national  existence.  It  is  the  universal  doctrine  of  the 
Prize  Courts  of  all  civilized  peoples,  and  has  never  been  con- 
troverted, except  by  those  theorists  who  would  lay  upon  the 

1 Qucestiones  Juris  Publici,  Lib.  I.,  Cli.  22. 


614 


CONTRABAND  TRADE. 


neutral  state  the  unendurable  burden  of  preventing  "all 
traffic  in  munitions  of  war  between  its  subjects  and  the 
belligerent  powers.  We  may  state  it  broadly  and  without 
fear;  but  in  doing  so  we  must  not  omit  one  small  qualifi- 
cation. A merchant  vessel  is  free  to  carry  such  arms  and 
munitions  as  may  be  deemed  necessary  for  its  own  defence 
against  pirates  and  enemies. 

Secondly,  it  is  clear  that  a belligerent  destination  is  essen- 
tial. This  was  brought  out  in  the  case  of  the  Imina,1  a neu- 
tral vessel  captured  in  1798  by  a British  cruiser.  At  the 
moment  of  seizure  she  was  carrying  a cargo  of  ship  timber 
from  Dantzic.  Her  original  destination  had  been  Amster- 
dam ; but  on  learning  that  it  was  blockaded  her  master  had 
altered  his  course  and  made  for  the  neutral  port  of  Embden. 
Lord  Stowell  released  the  vessel  on  the  ground  that  “goods 
going  to  a neutral  port  cannot  come  under  the  description 
of  contraband,  all  goods  going  there  being  equally  lawful.” 
But  these  words  must  not  be  taken  apart  from  their  context 
and  the  circumstances  which  caused  them  to  be  spoken. 
Embden  was  simply  a place  of  neutral  trade,  and  goods 
bound  for  it  were  about  to  enter  a neutral  market.  But 
had  it  contained  a belligerent  fleet,  articles  ancijntis  usus 
destined  for  the  fleet,  and  not  for  the  wharves  and  ware- 
houses of  the  neutral  city,  would  undoubtedly  have  been  con- 
demned as  contraband.  The  case  of  the  Commercen2  is  deci- 
sive on  this  point.  The  vessel  was  Swedish,  and  Sweden 
was  neutral  in  the  war  of  1812-1814  between  Great  Britain 
and  the  United  States.  The  Commercen  was  engaged  in  a 
voyage  from  Cork  to  the  neutral  Spanish  port  of  Bilboa. 
But  she  carried  a cargo  of  grain,  and  it  was  shown  that 
her  captain  meant  to  deliver  it  to  the  British  fleet  then 
lying  in  Spanish  waters.  The  vessel  was  captured  before 
she  reached  her  destination  by  an  American  privateer;  and 

1 Robinson,  Admiralty  Reports , III.,  167-170. 

2 Wheaton,  Reports  of  the  Supreme  Court , I.,  382  ; Pitt  Cobbett,  Leading 
Cases  in  International  Law , p.  226. 


CONTRABAND  TRADE. 


615 


the  case  finally  came  on  appeal  before  the  Supreme  Court, 
which  condemned  the  cargo  on  the  ground  that  it  was  des- 
tined for  the  use  of  hostile  forces.  The  principle  would  hold 
good  were  the  terminus  of  the  voyage  wholly  unconnected  with 
ports  of  any  kind.  To  supply  the  fleets  or  single  cruisers  of 
a belligerent  with  munitions  of  war  on  the  open  sea  would  be 
as  clear  a case  of  contraband  trade  as  carrying  a consignment 
of  rifles  to  one  of  his  garrison  towns.  It  is  the  hostile  desti- 
nation which  is  essential ; and  the  fact  that  such  destination 
is  nearly  always  a port  must  not  cause  us  to  ignore  the  few 
cases  where  it  is  nothing  of  the  kind.  Nor  must  we  forget 
that  the  neutral  shipmaster  is  not  allowed  to  escape  condem- 
nation by  ingeniously  interposing  a neutral  destination  be- 
tween the  commencement  of  his  voyage  and  its  real  termina- 
tion in  hostile  territory,  or  the  place  where  a hostile  fleet  or 
army  is  lying.  In  such  a case  the  doctrine  of  continuous 
voyages 1 applies,  and  the  goods  will  be  confiscated  on  account 
of  the  ulterior  belligerent  destination  of  the  vessel.  More- 
over, the  converse  of  this  rule  holds  good.  In  cases  where  the 
destination  of  the  vessel  is  undoubtedly  neutral,  the  desti- 
nation of  the  cargo  is  accounted  neutral  as  well,  unless  per- 
haps the  very  strongest  proof  to  the  contrary  is  forthcoming. 
The  intent  of  the  owner  is  not  the  ruling  factor  in  determin- 
ing the  liability  of  the  goods  to  capture  and  condemnation, 
though  Bluntschli  and  other  writers  lay  great  stress  upon  it.2 
The  mental  condition  of  the  trader  is  likely  to  vary  with  the 
chances  of  the  market  and  the  dangers  of  the  voyage.  What 
it  may  be  at  the  time  of  seizure  is  immaterial,  if  the  goods 
are  about  to  be  delivered  into  the  enemy’s  hands,  and  are  of  a 
kind  to  give  direct  and  serious  aid  to  his  warlike  operations. 

Thirdly  and  lastly,  we  must  bear  in  mind  that  the  offence 
is  completed  when  a neutral  vessel  leaves  port  with  a bellig- 
erent destination  and  a contraband  cargo,  and  is  “deposited” 

1 See  § 276. 

2 Bluntschli,  Droit  International  Codifie,  § 802 ; Kleen,  Contrebande  de 
Guerre , pp.  37-43 ; Wheaton,  International  Law  (Dana’s  ed.),  note  226. 


616 


CONTRABAND  TRADE. 


when  the  destination  is  reached  and  the  cargo  delivered.  As 
Lord  Stowell  said,  in  the  case  of  the  Imina,  “The  articles 
must  be  taken  in  delicto , in  the  actual  prosecution  of  the 
voyage  to  an  enemy’s  port.  Under  the  present  understand- 
ing of  the  law  of  nations  you  cannot  generally  take  the  pro- 
ceeds on  the  return  voyage.”1  This  is  the  general  rule;  but 
it  is  capable  of  modification  to  meet  the  needs  of  justice.  The 
principle  which  underlies  it  is  that  the  penalty  should  attach 
as  long  as  the  offence  exists.  The  offence  generally  exists 
from  the  beginning  to  the  end  of  the  outward  voyage,  and 
ceases  to  exist  the  moment  the  contraband  goods  are  placed 
in  the  hands  of  the  enemy.  But  if  during  the  voyage  the 
guilty  destination  has  been  changed  for  an  innocent  one,  as 
happened  in  the  case  of  the  Imina  cited  above,  or  if  a hostile 
destination  becomes  friendly  through  surrender  or  cession, 
then  a capture  made  after  the  change  has  been  effected  will 
not  result  in  condemnation.  Similarly,  if  the  outward  and 
the  homeward  voyages  are  but  parts  of  one  transaction,  con- 
ducted by  the  same  persons  and  planned  from  the  beginning 
as  one  adventure,  and  if  on  the  outward  voyage  contraband 
goods  and  fraudulent  papers  are  carried,  the  return  voyage 
will  not  be  regarded  as  a separate  and  innocent  expedition. 
It  is,  however,  somewhat  doubtful  whether  this  view  would 
be  acted  upon  at  the  present  time.  It  was  laid  down  by 
Lord  Stowell,  in  the  case  of  the  Nancy ; 2 but  continental 
publicists  condemn  it  as  an  undue  extension  of  belligerent 
rights,3  and  the  British  Admiralty  Manual  contents  itself 
with  the  statement  that  a commander  should  detain  a vessel 
he  meets  on  her  return  voyage  with  such  a record  as  we  have 
described  behind  her.4 

1 Robinson,  Admiralty  Reports,  III.,  168. 

2 Ibid.,  III.,  127. 

3 Cf.  Ortolan,  Diplomatic  de  la  Mer,  Liv.  III.,  Ch.  vi. 

4 Holland,  Manual  of  Naval  Prize  Law,  pp.  23,  24. 


Contraband  trade. 


617 


§ 280. 

The  usual  penalty  for  carrying  contraband  is  the  confis- 
cation of  the  contraband  goods.  The  few  treaties  which 
provide  for  temporary  detention  only  are  excep- 
tional,1 and  the  mildness  of  their  provisions  has  carrying  contra- 
not  been  generally  copied.  In  the  Middle  Ages 
the  vessel  also  was  forfeited,  on  the  ground  that  the  trade 
was  illegal  and  therefore  the  ship-owners  who  engaged  in 
it  ought  to  suffer.  The  change  to  the  milder  practice  of 
modern  times  began  with  the  great  growth  of  international 
trade  in  the  seventeenth  century,  and,  though  a few  of  the 
rules  at  present  applied  by  Prize  Courts  seem  to  be  survi- 
vals of  the  old  severity,  the  interests  of  commerce  have  on 
the  whole  made  themselves  felt  as  powerfully  as  in  other 
departments  of  the  law  of  maritime  capture. 

The  taint  of  contraband  is  held  to  attach  in  the  first 
instance  to  the  goods.  It  extends,  however,  to  the  vehicle 
that  carries  them  when  the  vessel  and  the  forbidden  cargo 
belong  to  the  same  owner.  In  that  case  the  ship  also  is  con- 
demned ; and  if  the  owner  of  the  contraband  articles  is  part 
owner  of  the  ship,  his  share  in  her  is  confiscated.  This  rule 
proceeds  upon  the  principle  that  “ when  a man  is  concerned 
in  an  illegal  transaction,  the  whole  of  his  property  embarked 
in  that  transaction  is  liable  to  confiscation ; ” 2 and  leads  to 
the  curious  result  that  a neutral  may  carry  the  contraband 
goods  of  another  neutral  without  any  further  penalty  than 
the  loss  of  freight,  but  may  not  carry  his  own  contraband 
goods  except  at  the  risk  of  the  loss  of  his  vessel.  It 
applies  to  innocent  goods  when  their  owner  owns  the  con- 
traband portion  of  the  cargo.  The  French  in  1778  endeav- 
ored to  extend  it  under  the  name  of  infection  or  contagion 

1 e.g.  The  treaty  of  1785  between  the  United  States  and  Prussia.  See 
Treaties  of  the  United  States , p.  903. 

2 Lord  Stowell  in  the  case  of  the  Yonge  Tobias,  Robinson,  Admiralty 
Reports,  I.,  330. 


618 


CONTRABAND  TRADE. 


of  contraband.  They  held  that  if  three-quarters  of  the  cargo, 
computed  in  value  and  not  in  bulk,  were  contraband,  the 
remaining  quarter,  and  the  vessel  as  well,  became  infected 
by  the  proximity  of  the  forbidden  articles  and  were  liable 
to  condemnation  without  regard  to  the  circumstances  of 
ownership.  But  this  ingenious  doctrine  has  been  con- 
demned even  by  French  writers,  and  cannot  be  regarded 
as  part  of  International  Law.1 

It  is,  however,  generally  held  that  any  resort  to  fraudu- 
lent devices  for  the  purpose  of  defeating  the  right  of  search 
or  deceiving  the  searching  officer  subjects  the  vessel  to  con- 
fiscation as  well  as  the  contraband  cargo.  The  use  of  false 
papers,  misrepresentation  as  to  the  destination  of  the  ship, 
concealment  of  the  noxious  goods  and  similar  practices  are 
frequently  resorted  to ; but  unless  they  succeed  in  hoodwink- 
ing the  belligerent  against  whom  they  are  directed,  their 
effect  is  but  to  increase  the  severity  of  the  penalty.  The 
same  result  follows  when  a neutral  sends  to  a belligerent 
destination  goods  which  are  declared  to  be  contraband  by 
a treaty  between  his  country  and  the  country  of  the  other 
belligerent.  The  breach  of  an  international  agreement  is 
accounted  an  aggravation  of  the  offence,  and  is  held  to 
justify  the  confiscation  of  the  vessel  in  the  event  of  capture. 
Some  writers  2 3 go  so  far  as  to  declare  that  mere  knowledge 
on  the  part  of  the  owner  of  the  vessel  of  the  employment  of 
his  ship  in  carrying  contraband  is  sufficient  to  involve  her 
in  the  condemnation  meted  out  to  the  noxious  goods.  But 
when  we  consider  that  so  long  ago  as  1798  Lord  Stowell 
was  able  to  say  in  the  case  of  the  Rmgende  Jacob, z “the 
carrying  of  contraband  articles  is  attended  only  with  the 
loss  of  freight  and  expenses,  except  when  the  ship  belongs 
to  the  owner  of  the  contraband  cargo,  or  when  the  simple 

1 Glass,  Marine  International  Law , pp.  136,  137. 

2 e.g.  Bynkershoek,  Qucestiones  Juris  Publici,  Lib.  I.,  Ch.  12  ; Halleck, 
International  Law , Ch.  XXVI.,  § 5. 

3 Robinson,  Admiralty  Beports,  I.,  91. 


CONTRABAND  TRADE. 


619 


misconduct  of  carrying  a contraband  cargo  has  been  con- 
nected with  other  malignant  and  aggravating  circum- 
stances,” we  may  feel  sure  that  a severity  left  unmentioned 
by  him  would  not  be  tolerated  in  the  milder  practice  of  our 
own  times. 


§ 281. 

Before  we  leave  the  subject  of  contraband  of  war  it  is 
necessary  to  consider  two  anomalous  practices  which  are 
contrary  to  sound  principles,  but  have  the  sup-  Tw0  anomalous 
port  of  a greater  or  less  amount  of  usage.  The  Practices- 
first  is  fully  explained  by  a stipulation  of  the  treaty  of  1800 
between  the  United  States  and  France,  according  to  which 
a cruiser  might  take  contraband  goods  out  of  a vessel 
engaged  in  carrying  them,  provided  that  the  captain  of 
such  vessel  was  willing  to  surrender  the  articles  in  ques- 
tion, and  they  were  not  greater  in  quantity  than  the’ cruiser 
could  conveniently  receive.1  In  this  way  it  was  hoped  the 
inconveniences  of  capture  would  be  reduced  to  a minimum. 
The  captor  would  have  the  contraband  goods  in  his  posses- 
sion and  be  able  to  take  them  in  for  adjudication  by  a Prize 
Court,  while  the  ship  would  be  free  to  pursue  her  voyage 
without  the  expense  and  delay  of  a compulsory  visit  to  the 
belligerent  tribunal  selected  to  decide  the  fate  of  her  ob- 
noxious cargo.  These  considerations  have  so  far  prevailed 
that  similar  stipulations  have  been  embodied  in  a few  latex- 
treaties,  notably  a group  negotiated  about  the  middle  of 
the  present  century  between  the  United  States  and  several 
South  and  Central  American  republics.  But  they  have 
not  become  general,  and  the  practice  they  embody  has 
never  been  resorted  to  in  the  absence  of  treaty  engage- 
ments, though  it  is  permitted  by  the  maritime  code  of  the 
Institut  de  Droit  International .2  It  is  open  to  the  grave 

1 Treaties  of  the  United  States , p.  327. 

2 Tableau  General , p.  202. 


620 


CONTRABAND  TRADE. 


objection  of  sending  the  case  in  one  direction  and  the  proof 
in  the  other.  If  the  title  to  the  goods  taken  as  contraband 
is  seriously  disputed  in  the  Prize  Court,  the  captor  has  no 
evidence  to  clear  up  difficult  points.  The  ship’s  papers  are 
with  the  ship,  which  may  he  at  the  other  end  of  the  world, 
and  the  captain  and  supercargo  are  probably  no  nearer  the 
spot  where  their  testimony  is  required.  The  plan,  plausible 
as  it  seems,  strikes  at  the  root  of  the  one  practice  which  has 
redeemed  capture  at  sea  from  indiscriminate  violence.  In 
making  a reasoned  judicial  decision  difficult,  if  not  impos- 
sible, it  tends  to  degrade  maritime  law  to  the  level  of  a 
haphazard  system,  and  deprives  it  of  its  best  security  for 
impartial  justice. 

The  other  usage  to  which  we  refer  as  anomalous  is  well 
known  under  the  name  of  pre-emption.  It  takes  place  when 
a belligerent  seizes  cargoes  bound  to  a hostile  destination 
and  forcibly  purchases  them,  on  the  plea  that  they  are  likely 
to  be  so  useful  to  his  enemy  that  they  must  be  kept  at  all 
risks  from  reaching  their  appointed  goal.  In  the  Middle 
Ages  governments  claimed  a right  of  first  purchase  of  all 
goods  brought  into  their  ports  by  foreigners.  Indeed  they 
sometimes  took  the  goods  and  forgot  the  obligation  to  pay 
for  them.1  The  modern  practice  is  confined  to  times  of  war 
and  applies  only  to  certain  classes  of  neutral  goods  on  their 
way  to  an  enemy’s  port.  The  leading  maritime  nations 
have  resorted  to  it;  but  their  mode  of  computing  the  pay- 
ment to  be  made  has  varied  considerably.  The  best  rule  is 
that  of  the  British  Courts  of  Admiralty,  which  have  been 
accustomed  to  give  “ the  original  price  actually  paid  by  the 
exporter,”2  plus  his  expenses  and  a reasonable  profit,  which 
last  was  generally  calculated  at  ten  per  cent  on  the  first  cost. 
Many  modern  writers  have  challenged  the  legality  of  pre- 
emption and  referred  to  it  as  a usurpation  rather  than  a 

1 Manning,  Law  of  Nations  (Amos’s  ed.),  Bk.  V.,  Ch.  viii. 

2 Judgment  of  Lord  Stowell  in  the  case  of  the  Haabet,  Robinson,  Admi- 
ralty Reports , II.,  183. 


CONTRABAND  TRADE. 


621 


right.1  It  is  advisable,  therefore,  to  examine  the  matter 
with  some  care ; and,  if  we  do  so,  we  shall  see  at  once  that 
the  cases  which  occur  may  be  divided  into  three  classes. 

In  the  first  place  a belligerent  may  choose  to  purchase 
instead  of  confiscate  goods  that  are  undoubtedly  contraband. 
Thus  Great  Britain,  at  the  end  of  the  last  century,  held  that 
pitch  and  tar  were  lawfully  confiscable  when  bound  to  an 
enemy’s  port.  But  if  they  were  the  produce  of  the  owner’s 
country,  she  paid  for  them  instead  of  taking  them  as  prize 
of  war;  “no  unfair  compromise,  as  it  would  seem,  between 
the  belligerent’s  rights,  founded  on  the  necessities  of  self- 
defence,  and  the  claims  of  the  neutral  to  export  his  native 
commodities,  though  immediately  subservient  to  the  pur- 
poses of  hostility.”2  Her  present  claim  is  based  on  the 
same  principle.  It  is  to  be  found  in  the  Admiralty  Manual 
of  1888,  and  runs  as  follows : “ The  carriage  of  goods  condi- 
tionally contraband,  and  of  such  absolutely  contraband  goods 
as  are  in  an  unmanufactured  state  and  are  the  produce  of 
the  country  exporting  them,  is  usually  followed  only  by  the 
pre-emption  of  such  goods  by  the  British  Government,  which 
then  pays  freight  to  the  vessel  carrying  the  goods.”3  That 
is  to  say,  an  indulgence  is  granted  to  the  neutral  owner. 
His  goods  are  forfeit.  They  could  be  taken  without  pay- 
ment ; but  instead  the  belligerent  pays  for  them.  Provided 
that  the  legal  assumption  on  which  this  practice  is  based  be 
correct,  there  can  be  no  manner  of  objection  to  it.  If  the 
captured  goods  are  really  contraband,  he  would  indeed  be 
a foolish  owner  who  made  a grievance  of  being  obliged  to 
receive  hard  cash  for  what  might  have  been  snatched  from 
him  without  compensation  of  any  kind. 

Secondly,  pre-emption  may  be  agreed  upon  between  a neu- 
tral and  a belligerent  government  when  the  latter  claims  the 

1 e.g.  Ortolan,  Diplomat ie  de  la  Mer,  Liv.  III.,  Ch.  vi. 

2 Judgment  of  Lord  Stowell  in  the  case  of  the  Sarah  Christina , Robinson, 
Admiralty  Deports,  I.,  241. 

8 Holland,  Manual  of  Naval  Prize  Law,  p.  24. 


622 


CONTRABAND  TRADE. 


right  to  capture  goods  which  the  former  maintains  ought  not 
to  be  regarded  as  contraband  of  war.  This  was  the  plan 
adopted  in  the  treaty  of  1794  between  Great  Britain  and  the 
United  States,  in  order  to  avoid  “the  difficulty  of  agreeing 
on  the  precise  cases  in  which  alone  provisions  and  other 
articles  not  generally  contraband  may  be  regarded  as  such.”1 
There  can  be  no  doubt  about  the  legality  of  forcible  pur- 
chase under  such  circumstances.  If  the  powers  concerned 
choose  to  make  an  agreement  to  permit  it,  they  are  within 
their  rights,  and  other  states  have  no  ground  for  objecting 
to  an  arrangement  which  does  not  concern  them. 

But  a third  application  of  the  practice  is  possible;  and 
when  it  takes  place  a serious  trespass  upon  the  rights  of  neu- 
trals is  committed.  Goods  not  liable  to  confiscation  as  con- 
traband may  be  subjected  to  pre-emption.  This  was  done 
in  1793  by  Great  Britain  and  France.2  The  act  of  these  two 
powerful  belligerents  gave  rise  to  a long  and  bitter  contro- 
vers}r,  in  which  neutral  nations,  especially  Denmark  and  the 
United  States,  maintained  that  provisions  could  not  be  re- 
garded as  contraband  unless  they  were  destined  for  a besieged 
place  or  a hostile  fleet  or  army.  They  held  that  any  attempt 
on  the  part  of  a belligerent  to  prevent  neutral  trade  in  such 
commodities  with  the  open  commercial  ports  of  his  enemy 
was  an  act  of  illegal  violence  for  which  reparation  was  due. 
When  in  1795  Great  Britain  issued  an  Order  in  Council 
instructing  her  cruisers  to  bring  in  for  pre-emption  cargoes 
of  provisions  bound  for  any  port  in  France,  she  defended  her 
action  on  the  ground  that,  as  the  entire  population  of  France 
was  in  danger  of  famine  and  her  own  people  were  threatened 
with  scarcity,  she  had  a right  to  treat  what  would  relieve 
their  necessities,  not  indeed  as  contraband,  but  as  bordering 
on  the  nature  of  contraband,  and  therefore  subject  to  pre- 
emption, though  not  to  confiscation.  These  arguments  did 

1 Treaties  of  the  United  States,  p.  389. 

2 Manning,  International  Law  (Amos’s  ed.),  p.  366 ; C.  de  Martens, 
Causes  Celebres,  II.,  Cause  Dixieme. 


CONTRABAND  TRADE. 


623 


not  satisfy  the  joint  commission  appointed  under  the  seventh 
article  of  the  treaty  of  1794  between  Great  Britain  and  the 
United  States  to  adjudicate  upon  the  claims  of  American 
citizens  who  complained  of  losses  by  illegal  capture.  Com- 
pensation was  granted  to  the  owners  of  the  vessels  and  car- 
goes seized  under  the  obnoxious  Orders  in  Council.1  These 
events  may  be  held  to  have  established  the  position  that  there 
can  be  no  middle  term  between  contraband  and  non-contra- 
band.  Goods  carried  by  neutrals  to  unblockaded  belligerent 
ports  are  either  contraband,  in  which  case  they  may  be  con- 
fiscated, or  non-contraband,  in  which  case  they  may  not  be 
molested.  Apart  from  special  treaty  stipulations  pre- 
emption to  be  legal  must  be  an  indulgence  granted  to 
neutral  traders  by  a belligerent  who  does  not  insist  upon 
his  full  right  of  seizure  and  condemnation. 

1 Wheaton,  International  Law , §§  490-501 ; Treaties  of  the  United  States, 
pp.  384,  385. 


CHAPTER  VII. 


UNNETJTRAL  SERVICE. 


282. 


There  are  certain  acts  which  neutral  merchantmen  can- 
not perform  for  one  belligerent  without  making  themselves 
The  acts  which  are  amenable  to  capture  and  condemnation  by  the 
designation nofu i?e  other.  These  acts  are  generally  discussed  in 
neutral  service.  connection  with  the  carriage  of  contraband ; 

but  of  late  years  a few  publicists  have  begun  to  see  that 
there  is  a wide  difference  between  the  two  misdeeds.  Yet 
the  idea  that  they  must  be  classed  together  is  still  strong. 
Hall  speaks  of  them  as  Analogues  of  Contraband,1  and  the 
Maritime  Code  of  the  Institut  de  Droit  International  deals 
with  them  along  with  contraband  trade  under  the  title  of 
Des  transports  Interdits  durant  la  Giuerre.2  Dana3  and 
Kleen4  see  their  real  character,  and  point  out  that  it  is 
special  and  peculiar.  In  truth  between  the  carrying  of 
contraband  and  the  performance  of  what  we  may  term 
Unneutral  Service  there  is  a great  gulf  fixed.  The  nature 
of  the  latter  will  appear  as  Ave  examine  the  acts  which  are 
included  under  it;  and  Avhen  we  have  dealt  with  them  in 
detail  we  shall  be  in  a position  to  show  how  they  differ 
from  the  offence  with  which  they  are  usually  confounded. 


1 International  Law , Pt.  IV.,  Ch.  vii. 

2 Tableau  General  pp.  201,  202. 

3 Note  228  to  AVheaton’s  International  Law. 

4 Contrebande  de  Guerre , pp.  223-232. 

624 


UNNEUTRAL  SERVICE. 


625 


A neutral  ship  is  forbidden  to 

1.  Transmit  certain  kinds  of  signals  or  messages  for 

a belligerent. 

2.  Carry  certain  kinds  of  despatches  for  a belligerent. 

3.  Transport  certain  kinds  of  persons  in  the  service 

of  a belligerent. 

The  penalty  attached  to  the  performance  of  these  acts  is 
confiscation  of  the  vessel  concerned  in  them,  and  confiscation 
of  the  cargo  also  in  cases  where  its  owners  “are  directly 
involved  in  the  knowledge  and  conduct  of  the  guilty  trans- 
action.”1 And  this  penalty  is  inflicted  without  regard  to 
the  neutral  or  belligerent  character  of  the  port  to  which  the 
ship  is  bound. 

We  will  take  the  acts  of  unneutral  service  in  the  order 
we  have  enumerated,  and  deal  first  with  the  transmission 
of  signals  or  messages  for  a belligerent.  If  a neutral  vessel 
becomes  a vehicle  for  carrying  between  two  portions  of  a bel- 
ligerent fleet  messages  bearing  on  the  conduct  of  the  war,  or 
signals  such  messages  from  one  to  the  other,  she  is  perform- 
ing an  act  so  contrary  to  the  nature  of  neutrality,  that  the 
other  belligerent  may  consider  her  as  engaged  in  the  service 
of  his  enemy  and  treat  her  accordingly  while  she  remains  so 
employed.  The  same  may  be  said  of  signalling  or  bearing 
messages  between  a fleet  and  a land  force,  or  laying  a cable 
to  be  used  mainly  or  exclusively  for  warlike  purposes. 
Assistance  of  this  kind  goes  far  beyond  the  ordinary  offices 
of  friendship  and  humanity.  It  amounts  to  a participation 
in  the  war  and  is  regarded  as  such  by  the  combatant  who 
suffers  from  it. 

We  have  next  to  consider  the  carrying  of  certain  kinds 
of  despatches  for  a belligerent.  All  communications  are 
not  forbidden,  but  only  those  which  may  be  deemed  official, 

1 Judgment  of  Lord  Stowell  in  the  case  of  the  Atalanta ; see  Robinson, 
Admiralty  Reports , VI.,  460. 


626 


TTNNETJTRAL  SERVICE. 


and  even  from  these  diplomatic  despatches  are  excepted, 
when  the  neutral  carries  them  between  a belligerent  govern- 
ment and  its  minister  in  a neutral  country,  or  between  a 
neutral  government  and  its  minister  in  a belligerent  coun- 
try. This  exception  and  the  reasons  for  it  were  admirably 
stated  in  the  case 'of  the  Caroline an  American  vessel  capt- 
ured by  a British  cruiser  in  1808,  when  on  a voyage  from 
New  York  to  Bordeaux.  She  carried  a cargo  of  cotton,  but 
also  diplomatic  and  consular  despatches  from  the  French 
minister  at  Washington  and  a French  consul  in  America  to 
the  French  Government  at  home.  Lord  Stowell  in  giving 
judgment  laid  down  as  a general  rule  that  the  carrying 
of  despatches  for  the  enemy  by  a neutral  was  illegal;  and 
defined  despatches  as  “official  communications  of  official 
persons,  on  the  public  affairs  of  the  government.”  But  he 
went  on  to  say  that  “ the  neutral  country  has  a right  to  pre- 
serve its  relations  with  the  enemy,  and  you  are  not  to  con- 
clude that  any  communication  between  them  can  partake, 
in  any  degree,  of  the  nature  of  hostility  against  you.” 
That  being  the  case,  there  was  no  ground  for  saying 
that  the  neutral  carrier  had  violated  his  duty  by  bearing 
despatches  presumably  of  an  innocent  nature.  The  ship 
was,  therefore,  restored;  and,  in  a subsequent  case,  in 
which  consular  despatches  alone  were  concerned,  a similar 
decision  was  rendered.2  We  may  sum  up  the  law  of  the 
matter,  as  given  in  unchallenged  decisions  of  Prize  Courts, 
by  declaring  that  neutrals  may  not  carry  military  or  naval 
despatches  for  the  belligerents,  or  despatches  between  a 
belligerent  government  and  the  officials  of  its  colonies  and 
dependencies,  but  they  may  carry  diplomatic  and  consular 
despatches,  and  also  private  letters  and  communications 
relating  to  business  affairs. 

This  brings  us  to  the  peculiar  position  of  neutral  mail- 
steamers  and  other  vessels  carrying  mails  by  agreement 

1 Robinson,  Admiralty  Beports,  VI.,  4G4-470. 

2 The  Madison ; see  Edwards,  Admiralty  Beports,  p.  224. 


UNNEUTRAL  SERVICE. 


627 


with  a neutral  government.  Their  owners  and  captains 
cannot  be  held  responsible  for  the  nature  of  the  numerous 
communications  they  carry.  They  would  grossly  violate 
the  trust  reposed  in  them  if  they  took  steps  to  become 
acquainted  with  the  contents  of  the  letters  under  their 
charge.  Knowledge,  therefore,  cannot  be  imputed  to  them, 
should  noxious  despatches  happen  to  be  on  board;  and  their 
vessels  are  not  held 'liable  to  confiscation  merely  because  of 
the  presence  of  such  despatches  in  the  mail-bags,  though  the 
immunity  would  not  extend  to  other  forms  of  unneutral 
service.  Thus  far  the  common  law  of  nations  operates  to 
protect  the  ordinary  vehicles  of  international  communica- 
tion. But  in  recent  times  a usage  has  grown  up  of  exempt- 
ing packet-boats,  not  merely  from  condemnation,  but  also 
from  visit,  search  and  capture.1  This  further  immunity 
has,  however,  been  conceded  by  belligerents  as  a matter  of 
grace  and  favor.  There  is  little  doubt  that  it  will  con- 
tinue to  exist;  but  it  has  not  at  present  become  a right 
which  neutrals  are  entitled  to  claim.  When  the  United 
States  granted  it  in  1862,  they  added  the  proviso  that 
“simulated  mails  verified  by  forged  certificates  and  coun- 
terfeit seals”  should  not  be  protected  thereby;  and  in 
1870  France  insisted  upon  the  condition  that  an  agent  of 
the  neutral  state  should  be  in  charge  of  the  mail-bags  and 
declare  them  to  be  free  from  noxious  communications.  It 
is  obvious  that  these  precautions  against  the  use  of  the 
mails  for  the  conveyance  of  intelligence  by  the  enemy  are 
of  little  practical  utility.  The  more  valuable  the  informa- 
tion, the  more  innocent  it  would  be  made  to  appear.  The 
word  of  a postal  clerk  of  the  neutral  government  might  be 
given  with  the  most  perfect  honesty,  but  could  afford  no 
real  guarantee  of  the  harmlessness  of  each  unit  among  hun- 
dreds of  thousands  of  communications,  not  one  of  which  he 
had  read.  In  granting  immunity  from  search  to  mail- 
steamers  belligerents  must  recognize  that  they  are  surren- 


1 Wheaton,  International  Law  (Dana’s  ed.),  p.  659,  note. 


628 


UNNEUTRAL  SERVICE. 


dering  an  important  safeguard  against  possible  damage  to 
themselves.  It  will  probably  be  worth  their  while  to  make 
the  concession  rather  than  dislocate  neutral  commerce;  but 
they  cannot  at  one  and  the  same  time  make  it  and  retain 
the  security  derived  from  the  stricter  rule. 

Our  third  and  last  head  must  now  be  dealt  with.  A 
neutral  may  not  transport  certain  kinds  of  persons  in  the 
service  of  a belligerent.  He  is  not  forbidden  to  carry  in  his 
regular  packet-boats  individuals  who  pay  for  their  berths  in 
the  usual  way  and  come  on  board  as  ordinary  passengers, 
even  though  they  turn  out  to  be  officers  of  one  or  the  other 
of  the  combatant  powers.  In  the  case  of  the  Friendship, 
Lord  Stowell  declared  that  no  British  tribunal  had  ever 
gone  the  length  of  preventing  a military  officer  in  the  ser- 
vice of  the  enemy  from  travelling  in  a neutral  vessel  if  he 
went  as  an  ordinary  passenger,  and  at  his  own  expense.1 
But  naval  or  military  persons  coming  on  board  as  such,  and 
travelling  at  the  expense  of  a belligerent  government,  are 
carried  by  a neutral  merchantman  at  the  risk  of  seizure  and 
confiscation.  Even  when  it  is  the  ordinary  business  of  the 
vessel  to  carry  passengers,  a contract  of  hiring  made  with  the 
agent  of  one  of  the  warring  powers  would  probably  lead  to 
her  condemnation  in  the  event  of  capture ; and  there  can  be 
no  doubt  about  the  fate  of  a mere  cargo-boat  so  hired,  and 
used  for  the  conveyance  of  belligerent  forces  or  officials. 
In  most  of  the  reported  cases  a special  contract  of  the 
nature  described  had  been  entered  into  and  was  made  one 
of  the  chief  grounds  of  condemnation.  The  Orozembo,  for 
instance,  a neutral  American  vessel,  was  condemned  by  an 
English  Prize  Court  because  the  owner  or  his  agents  had 
agreed  with  the  government  of  Holland,  a power  at  war 
with  Great  Britain,  to  let  the  vessel  for  the  transportation 
of  three  military  officers  of  distinction  from  Europe  to  Bata- 
via.2 The  number  of  persons  carried  under  such  circum- 
stances is  immaterial.  A whole  regiment  might  be  far  less 


1 Robinson,  Admiralty  Reports,  VI.,  429. 


2 Ibid.,  VI.,  430-439. 


UNNEUTRAL  SERVICE. 


629 


valuable  to  a belligerent  than  one  or  two  skilled  command- 
ers. If  one  side  deems  them  important  enough  to  be  sent 
out  at  the  public  expense,  the  other  side  is  justified  in 
decreeing  the  forfeiture  of  the  vessel  which  carries  them. 
The  transportation  of  civil  officials  would  probably  entail 
the  same  consequences  as  the  transportation  of  fighting 
men.  But  just  as  diplomatic  despatches  are  privileged, 
so  also  are  diplomatic  persons.  Neutral  vessels  may  freely 
carry  representatives  of  the  belligerent  governments  to  and 
from  their  posts  in  neutral  countries. 

The  most  important  and  the  most  frequently  performed 
unneutral  services  are  arranged  under  the  three  heads  we 
have  just  enumerated.  But  the  classification  is  by  no  means 
exhaustive.  There  are  other  ways  of  giving  unlawful  aid 
to  belligerents  besides  those  we  have  been  considering. 
The  exigencies  of  warfare  are  so  numerous  and  so  change- 
ful that  no  one  can  describe  beforehand  every  possible  mode 
in  which  a neutral  ship  may  make  herself  into  a transport 
in  the  service  of  one  or  other  of  the  belligerents.  The 
principle  of  the  law  is  clear.  It  forbids  anything  approach- 
ing to  an  actual  participation  in  the  war.  The  application 
of  the  principle  must  be  settled  in  each  case  as  it  arises. 
Among  the  acts  which  it  assuredly  covers  we  may  mention 
transferring  provisions,  coals  or  ammunition  from  one  bel- 
ligerent ship  to  another  at  sea,  and  showing  the  channel 
to  a fleet  advancing  for  a hostile  attack. 


§ 283. 

We  have  already  seen  that  the  ordinary  penalty  for 
unneutral  service  is  the  confiscation  of  the  peccant  ship 
and  any  part  of  the  cargo  which  belongs  to  The  penaUy  for 
her  owner.  Her  liability  to  capture  and  con-  and  thelssentiais3 
demnation  commences  when  she  commences  of  liability  to  it. 
the  unlawful  services,  and  continues  either  till  the  ter- 
mination of  her  voyage,  or  till  she  has  delivered  the 
forbidden  despatches,  deposited  the  forbidden  persons,  or 


630 


UNNEUTRAL  SERVICE. 


finished  the  performance  of  the  forbidden  acts.  But  in 
some  cases  the  offence  is  of  such  a character  that  it  is 
possible  to  commit  it  inadvertently.  This  is  true  in  a 
special  manner  of  carrying  despatches,  which  may  easily  be 
disguised  as  private  communications  and  palmed  off  upon 
unsuspecting  skippers.  The  law  demands  a reasonable 
amount  of  caution  from  the  neutral  shipmaster.  He  is 
bound,  for  instance,  to  be  more  careful  in  a belligerent 
than  in  a neutral  port;  and  if  the  communication  he  is 
asked  to  convey  is  sent  by  or  addressed  to  a known  agent 
of  a warring  government,  he  must  require  stronger  assur- 
ances of  its  innocuous  character  than  if  it  purported  to  be 
passing  between  private  persons.  But  when,  in  spite  of 
due  precautions,  he  is  deceived,  his  ship  will  escape  confis- 
cation. This  was  decided  by  the  case  of  the  Rapid,1  which 
was  an  American  vessel  plying  between  two  neutral  ports, 
but  found  to  have  on  board  letters  containing  important 
information  for  the  belligerent  government  of  Holland. 
The  British  Prize  Court,  however,  released  her  on  the 
ground  that  the  communications  appeared  on  the  outside 
to  be  private  and  were  given  by  a private  person  in  a neu- 
tral port  to  be  carried  to  another  private  person  in  another 
neutral  port.  But  in  the  case  of  the  Susan 2 ignorance  of 
the  nature  of  the  despatches,  unaccompanied  by  caution, 
was  not  held  sufficient  to  cause  the  release  of  the  vessel. 
To  ensure  condemnation  fraud  on  the  part  of  the  captain 
is  not  necessary.  It  is  enough  if  he  knows  the  character 
of  the  documents  he  carries,  or  even  if  he  has  neglected  to 
exercise  due  care  in  order  to  assure  himself  that  they  are 
not  forbidden  communications.  Fraud  and  fraudulent  con- 
cealment will,  however,  be  visited  with  the  severest  pen- 
alt}'  possible,  whereas  blundering  but  honest  incapacity  is 
unlikely  to  lead  to  anything  more  than  the  loss  of  the  ship. 

It  is  clear  that  the  knowledge  of  the  shipmaster  is  an 

1 Edwards,  Admiralty  Reports , p.  228. 

2 Robinson,  Admiralty  Reports , VI.,  461,  note. 


UNNEUTRAL  SERVICE. 


631 


important  factor  in  the  determination  of  a large  class  of 
cases.  But  even  more  important  is  the  character  of  the 
contract  made  with  regard  to  the  vessel  and  the  service  it 
is  expected  to  perform.  Whenever  it  can  be  shown  that 
the  neutral  owner  or  shipmaster  has  entered  into  a special 
agreement  with  a belligerent  government  or  its  agent  to  let 
out  his  vessel  for  the  purpose  of  doing  any  of  the  acts  de- 
scribed in  the  preceding  section,  the  vessel  becomes  ipso  facto 
a transport  in  the  service  of  that  belligerent  and  is  subject 
to  condemnation  if  captured  by  the  cruisers  of  the  other 
side.  This  kind  of  contract  seldom  exists  with  regard  to 
the  conveyance  of  despatches,  which  are  so  small  in  bulk, 
so  easy  of  transmission,  and  so  readily  disguised  as  inno- 
cent communications,  that  neutral  captains  may  often  be 
induced  to  take  them  without  any  agreement  to  put  their 
vessels  at  the  disposal  of  a warring  power.  But  the  con- 
tract in  question  is  frequently  found  when  naval  or  mili- 
tary men,  or  official  personages,  are  carried,  and  when  it 
exists  the  number  of  such  individuals  is  immaterial.  In- 
deed it  might  be  argued  that,  even  if  none  were  on  board 
at  the  moment  of  capture,  the  vessel  was  lawful  prize, 
provided  that  the  contract  still  held  good  and  she  was  on 
her  way  to  perform  any  part  of  it. 

A careful  examination  of  the  recorded  cases  shows  that 
we  may  resolve  the  vessels  performing  unneutral  service 
into  two  classes.  In  the  first  class  we  may  place  all  neu- 
tral ships  actually  engaged  as  transports  in  the  service  of  a 
belligerent.  Such  transports  were  defined  by  Lord  Stowell 
in  the  case  of  the  Friendship  as  “vessels  hired  by  the 
government  to  do  such  acts  as  shall  be  imposed  upon  them, 
in  the  military  service  of  the  country.”1  But  in  the  case 
of  the  Carolina 2 he  took  a wider  view,  and  decided  that  a 
neutral  Swedish  ship  which  had  been  forced  to  act  as  a 
French  transport  was  not  exempt  from  condemnation  by 
reason  of  the  duress  that  had  been  applied  to  her.  It  did 

1 Robinson,  Admiralty  Reports , VI.,  425.  2 Ibid.,  IV.,  260. 


632 


UNNEUTRAL  SERVICE. 


not  appear  that  the  master  had  made  any  remonstrance 
against  the  service  on  which  he  was  employed,  or  refused 
to  victual  and  navigate  his  ship.  Undoubtedly  his  proper 
course  would  have  been  to  surrender  his  vessel  under  pro- 
test to  the  French  authorities  as  a prize,  leaving  it  to 
his  own  government  to  demand  reparation  for  her  unlaw- 
ful detention.  Yet  it  may  be  questioned  whether  the 
doctrine  that  the  neutral  captain  cannot  be  permitted  to 
plead  force  as  an  excuse  would  hold  good  to-day.  The 
distinction  which  Lord  Stowell  refused  to  draw  between 
voluntary  and  involuntary  action  would  probably  be  drawn 
in  a modern  Prize  Court.  But  the  rule  that  confiscation 
must  follow  capture,  when  there  is  an  actual  entry  into  the 
enemy’s  service  under  the  provisions  of  a contract  made 
between  him  and  the  neutral,  remains  unchallenged,  and 
would  certainly  be  applied  in  any  future  maritime  struggle. 

The  second  class  of  vessels  engaged  in  the  performance 
of  unneutral  acts  consists  of  those  which  have  not  entered 
as  transports  into  the  service  of  a belligerent,  but  are 
nevertheless  seized  while  giving  him  forbidden  assistance. 
Contract  is  absent  in  these  cases.  No  special  agreement 
to  place  the  ship  at  the  disposal  of  a warring  power  has 
been  made  by  the  neutral  owner  or  captain.  But  the 
absence  of  anything  of  the  kind  will  not  save  the  vessel 
from  condemnation  in  the  event  of  capture,  if  those  who 
have  control  of  her  knowingly  do  any  of  the  prohibited 
acts.  Their  knowledge  is  the  important  point.  Prize 
Courts  assume  that  they  possess  it,  and  put  upon  them 
the  burden  of  proof  of  ignorance.  They  must,  however, 
do  more  than  show  that  they  were  not  aware  of  the  true 
character  of  the  persons  or  papers  entrusted  to  their  care. 
It  is  necessary  for  them  to  prove  that  they  took  all  reason- 
able precautions  to  avoid  error.  Ignorance  pure  and  simple 
will  not  avail  to  prevent  forfeiture.  Excusable  ignorance 
is  the  only  ground  for  leniency.1 

a 

1 For  an  excellent  summary  of  the  cases  see  Dana’s  note  on  Carrying  Hos- 
tile Persons  or  Papers,  in  his  ed.  of  Wheaton’s  International  Law,  pp.  637-644. 


UNNEUTRAL  SERVICE. 


633 


§ 284. 

We  are  now  in  a position  to  distinguish  clearly  between 
the  offence  of  carrying  contraband  and  the  offence  of  engag- 
ing in  unneutral  service.  They  are  unlike  in  The  distinction 

. ..  . P . ....  between  the 

nature,  unlike  m proot  and  unlike  m penalty,  offences  of  can-y- 

. . . . . . ing  contraband 

lo  carry  contraband  is  to  engage  m an  ordinary  and  engaging  in 

, unneutral  ser- 

tradmg  transaction  which  is  directed  towards  vice, 
a belligerent  community  simply  because  a better  market 
is  likely  to  be  found  there  than  elsewhere.  To  perform 
unneutral  service  is  to  interfere  in  the  struggle  by  doing 
in  aid  of  a belligerent  acts  which  are  in  themselves  not 
mercantile,  but  warlike.  In  order  that  a cargo  of  contra- 
band may  be  condemned  as  good  prize,  the  captors  must 
show  that  it  was  on  the  way  to  a belligerent  destina- 
tion. If  without  subterfuge  it  is  bound  to  a neutral 
port,  the  voyage  is  innocent,  whatever  may  be  the  nature 
of  the  goods.  In  the  case  of  unneutral  service  the  destina- 
tion of  the  captured  vessel  is  immaterial.  The  nature 
of  her  mission  is  the  all-important  point.  She  may  be 
seized  and  confiscated  when  sailing  between  two  neutral 
ports.  The  penalty  for  carrying  contraband  is  the  forfeiture 
of  the  forbidden  goods,  the  ship  being  retained  as  prize  of 
war  only  under  special  circumstances.  The  penalty  for 
unneutral  service  is  first  and  foremost  the  confiscation  of 
the  vessel,  the  goods  on  board  being  condemned  when  the 
owner  is  involved  or  when  fraud  and  concealment  have 
been  resorted  to. 

Nothing  but  confusion  can  arise  from  attempting  to  treat 
together  offences  so  widely  divergent  as  the  two  now  under 
consideration.  This  was  shown  in  a marked  degree  by  a 
famous  case,  which  occurred  towards  the  end  of  1861.  On 
November  8 in  that  year  the  American  cruiser  San  Jacinto 
stopped  the  British  mail-steamer  Trent  when  on  her  usual 
voyage  between  the  two  neutral  ports  of  Havana  and 
Nassau,  and  took  from  her  Messrs.  Slidell  and  Mason, 


634 


TJHNEUTRAL  SERVICE. 


who  were  proceeding  to  Europe  as  agents  of  the  Confed- 
erate Government  in  France  and  England  respectively. 
The  vessel  was  then  allowed  to  continue  her  voyage,  and 
the  Southern  commissioners  and  their  two  secretaries  were 
landed,  and  detained  as  prisoners  at  Boston.  The  news  of 
the  seizure  reached  London  on  the  27th  of  November.  On 
the  30th,  the  British  Government  demanded  the  release 
of  the  captured  individuals.  Troops  and  stores  were  de- 
spatched to  Canada;  and  the  warlike  feeling  evoked  in 
Engl  and  found  its  counterpart  on  the  other  side  of  the 
Atlantic,  where  Captain  Wilkes,  the  commander  of  the 
San  Jacinto,  was  publicly  feasted,  and  Congress,  on  Decem- 
ber 4,  honored  him  with  a vote  of  thanks.  Fortunately,  a 
few  wise  and  peace-loving  men  were  not  carried  away  by 
the  general  excitement.  Foremost  among  them  were  the 
late  Prince  Consort  in  England  and  the  late  President 
Lincoln  in  America.  Owing  mainly  to  their  calm  judg- 
ment and  self-sacrificing  efforts,  the  terrible  calamity  of 
war  between  two  kindred  nations  was  avoided.  On 
December  26,  Mr.  Seward,  the  American  Secretary  of 
State,  argued  the  question  at  great  length  in  a compre- 
hensive despatch,  and  concluded  by  agreeing  to  give  up 
the  prisoners  on  the  ground  that  they  ought  not  to  have 
been  taken  out  of  the  vessel,  but  should  have  been  brought 
in,  with  the  vehicle  which  carried  them,  for  adjudication 
by  a properly  constituted  Prize  Court.  A few  days  later 
they  were  placed  on  board  an  English  man-of-war,  to  be 
taken  to  Nassau,  the  port  for  which  the  Trent  was  making 
when  the  seizure  took  place.  This  settled  the  matter 
immediately  in  dispute,  and  put  an  end  to  the  acute  stage 
of  the  controversy.  But  on  January  23,  1862,  Earl  Rus- 
sell, who  was  then  Secretary  of  State  for  Foreign  Affairs 
in  the  British  Government,  replied  in  an  elaborate  state 
paper  to  the  arguments  of  the  American  despatch  of  the 
previous  month.  This  he  did  in  order  that  Her  Majesty’s 
government  might  put  on  record  its  disagreement  with 


UNNEUTRAL  SERVICE. 


635 


some  of  Mr.  Seward’s  conclusions.  The  discussion  went 
no  further  as  between  the  official  representatives  of  the  two 
powers  concerned;  but  private  persons  carried  it  on  with 
great  vigor  for  many  months ; and  even  now  the  case  of 
the  Trent  forms  a subject  for  discussion  in  books  on  Inter- 
national Law.  To  us  its  value  as  a leading  case  ranks  very 
low.  It  was  argued  throughout  on  an  erroneous  assump- 
tion. Mr.  Seward  labored  earnestly  to  prove  that  the  Con- 
federate commissioners  and  their  suite  were  contraband  of 
war.  Earl  Russell  strove  with  equal  toil  to  show  that  they 
were  nothing  of  the  kind.  Mr.  Seward  regarded  the  neu- 
tral destination  of  the  Trent  as  a fact  of  no  moment.  Earl 
Russell  held  it  to  be  decisive  in  favor  of  her  immunity  from 
belligerent  capture.  Both  sides  persisted  in  attempting  to 
apply  to  the  facts  before  them  the  principles  of  the  law  of 
contraband,  whereas  the  question  to  be  resolved  was  clearly 
concerned  with  unneutral  service.  The  law  of  contraband 
provides  for  dealing  with  things,  not  persons,  as  Mr. 
Seward  plainly  saw.  But  nevertheless  he  did  not  seem 
to  suspect  that  there  was  any  other  way  of  bringing  the 
points  at  issue  to  the  decision  of  a properly  constituted 
tribunal.  Excuse  for  this  failure  to  discern  what  is  abun- 
dantly evident  may  be  found  in  the  language  of  a few 
treaties  and  a considerable  number  of  writers,  who  place  in 
their  lists  of  contraband  such  persons  as  soldiers  and  sailors. 
But  those  who  have  followed  the  arguments  of  the  two  pre- 
ceding sections  will  hardly  need  to  be  told  that  the  carriage 
of  belligerent  individuals  by  neutral  vessels  and  the  carriage 
of  articles  of  contraband  trade  stand  on  very  different  grounds 
and  are  judged  by  very  different  rules.  The  complexity  and 
difficulty  of  the  case  of  the  Trent  would  have  vanished  in 
a moment  had  the  principles  appropriate  to  it  been  recog- 
nized and  applied.  Neutral  vessels  may  innocently  carry 
some  kinds  of  persons  belonging  to  communities  at  war. 
Other  kinds  they  may  not  carry  except  at  the  risk  of  cap- 
ture and  confiscation  by  the  belligerent  who  suffers  from 


G36 


UNNEtJTRAL  SERVICE. 


their  service  to  his  foe.  The  Trent  was  undoubtedly  en- 
gaged in  transporting  four  citizens  of  the  Southern  Con- 
federacy. The  only  question  to  be  argued  was  whether 
they  belonged  to  the  allowed  or  the  forbidden  class.  The 
destination  of  the  vessel  was  absolutely  immaterial.  The 
provisions  of  the  law  of  contraband  were  beside  the  mark. 
What  required  to  be  applied  was  the  law  of  unneutral  ser- 
vice. Those  of  its  rules  which  bear  upon  the  matter  in 
dispute  are  very  simple.  A neutral  vessel,  not  being  in 
the  service  of  a belligerent  as  a transport,  may  lawfully 
carry  both  his  diplomatic  agents  and  his  private  citizens. 
Now  the  exact  status  of  Messrs.  Slidell  and  Mason  may 
well  be  regarded  as  doubtful.  The  Confederacy,  of  which 
they  were  agents,  had  been  recognized  as  a belligerent 
power,  but  not  as  a sovereign  state.  It  could  not,  there- 
fore, accredit  formal  and  official  diplomatic  ministers  to 
foreign  countries,  and  was  reduced  to  sending  informal 
envoys.  But  if  these  gentlemen  were  not  diplomatists,  they 
were  private  persons,  and  in  neither  capacity  was  the  neu- 
tral precluded  from  transporting  them  as  ordinary  passen- 
gers in  his  mail  packets.  Consequently  the  seizure  was 
illegal,  and  would  have  been  illegal  had  Captain  Wilkes 
brought  in  the  vessel  and  all  she  contained  for  adjudication 
by  a lawful  Prize  Court.  A contrary  decision  would,  as 
was  pointed  out  at  the  time,  have  authorized  the  seizure  of 
the  Dover  packet-boat  by  a Federal  or  a Confederate  cruiser, 
had  an  important  diplomatic  agent  of  the  other  side  been 
crossing  in  her  from  England  to  France  or  from  France  to 
England.  Such  a drastic  interference  with  neutral  trade 
was  never  contemplated  by  International  Law.1 

1 The  literature  of  the  Trent  Case  is  voluminous.  The  facts  and  argu- 
ments will  be  found  in  Wharton,  International  Law  of  the  United  States, 
§§  328,  374  ; Montague  Bernard,  Neutrality  of  Great  Britain  in  the  Ameri- 
can Civil  War,  Ch.  IX.;  Dana,  note  on  Carrying  Hostile  Persons  or  Papers, 
in  his  ed.  of  Wheaton’s  International  Law,  pp.  644-659;  and  Letters  of 
Historicus,  IX. 


INDEX  OF  CASES 


Adonis,  The,  594. 

Aggripina,  The,  544. 

Alabama,  The,  139,  467,  484,  536,  537, 
544-546,  553. 

Alexander,  The,  594. 

Alexandra,  The,  543. 

Amy  Warwick,  The,  303. 

Anna,  The,  142. 

Arguelles,  234. 

Atalanta,  The,  625  note  1. 

Bahama,  The,  545. 

Betsy,  The,  (1798)  581,  592. 

Betsy,  The,  (1799)  588. 

Boedes  Lust,  The,  296. 

Brown  v.  The  United  States,  352. 

Carolina,  The,  631. 

Caroline,  The,  (1808)  626. 

Caroline,  The,  (1837)  501-503. 

Castioni,  237. 

Charleston,  The,  555. 

Cherokee  Nation  v.  State  of  Georgia,  69. 
Chesapeake,  The,  394. 

Chesterfield,  The,  224. 

Circassian,  The,  585. 

Commercen,  The,  614. 

Costa  Rica,  The,  228. 

Cumberland,  The,  380. 

Danous,  The,  316. 

Don  Pantaleon  Sa,  276. 

Empress,  The,  589. 

Etata,  The,  555. 

Exchange,  The,  224,  552. 

Fanny,  The,  325. 

Florida,  The,  515,  545. 

Franciska,  The,  589. 

Friendship,  The,  628,  631. 

General  Armstrong,  The,  540. 

Georgia,  The,  545. 


Gideon  Henfield,  482. 

Gran  Para,  The,  547. 

Haabet,  The,  620  note  2. 

Halliday,  Macartney,  Sir,  267. 
Harmony,  The,  320. 

Hercules,  The,  544. 

Hiawatha,  The,  592. 

Huascar,  The,  211. 

Imina,  The,  614,  616. 

Indian  Chief,  The,  321. 
Investigator,  The,  380. 

Juffrow  Maria  Slirseder,  The,  592 

Leopard,  The,  394. 

Leucade,  The,  326. 

Madison,  The,  626  note  2. 

Maria,  The,  (1799)  527. 

Maria,  The,  (1805)  595. 

Marianna  Flora,  The,  393. 

Nancy,  The,  616. 

Nashville,  The,  510. 

Neptunus,  The,  (1798)  590. 
Neptunus,  The,  (1799)  586,  588,  593. 
Nereide,  The,  325. 

Orozembo,  The,  628. 

Pampero,  The,  544. 

President,  The,  225. 

Rapid,  The,  630. 

Rauselier,  237. 

Ringende  Jacob,  The,  618. 

San  Jacinto,  The,  633. 

Santissima  Trinidad,  The,  547,  556. 
Sarah  Christina,  The,  621  note  2. 
Sea  Bride,  The,  139. 

Shenandoah,  The,  211,  531,  545. 


638 


INDEX  OF  CASES, 


Sitka,  The,  225. 

Society  for  the  Propagation  of  the 
Gospel  v.  Town  of  Newhaven,  311. 
Springbok,  The,  596. 

Stert,  The,  583. 

Susan,  The,  630. 

Sutton  v.  Sutton,  311. 

Swineherd,  The,  458. 

Thirty  Hogsheads  of  Sugar,  324. 

Trent,  The,  633-636. 

Triheten,  The,  590. 

Tuscarora,  The,  510. 

Twee  Gebroeders,  The,  506. 

Two  Friends,  The,  392. 


Tyne,  The,  244. 

United  States  v.  Quincy,  548. 

Venus,  The,  321. 

Victor,  The,  520. 

Virginius,  The,  382. 

Wachusett,  The,  515. 

Weeks,  235. 

Winslow,  236. 

Wolff  v.  Oxholm,  353. 

Yonge  Margaretha,  The,  607. 

Yonge  Jacob  and  Johanna,  The,  383. 


INDEX. 


Africa;  the  modern  attempts  to  parti- 
tion, 144,  145;  navigation  of  its  great 
rivers,  189;  international  convention 
for  putting  down  slave  trade  in,  215- 
219. 

Aix-la-Chapelle,  Congress  of ; 262. 

Alabama  Controversy;  104,  467,484,536, 
537,  544-546,  601. 

Alternat,  the ; 255. 

America ; effect  of  discovery  on  Inter- 
national Law,  51,  52,  143,  169;  its 
division  among  civilized  states,  144. 

Andorra ; 73. 

Angary  ; 515-517. 

Arbitration ; 116,  149,  172,  173,  467-472. 

Armed  Neutralities,  the ; 97,  104,  566, 
573,  577. 

Armistices ; 455,  456. 

Assassination  forbidden  ; 436,  437. 

Asylum,  Right  of ; 509,  512. 

Austin,  John ; his  account  of  law,  10- 
12;  criticisms  upon  it,  12-16. 

Australia;  150. 

Austria;  externally  one  state,  63;  one 
of  the  Great  Powers,  66;  position  of 
in  the  German  Confederation,  74; 
joins  alliance  against  France  (1813), 
121 ; guarantees  integrity  of  Turkey, 
124 ; accepts  aid  of  Russia  (1849) , 125 ; 
joins  Holy  Alliance,  131 ; signs  Decla- 
ration of  Paris,  568. 

Balance  of  Power;  theory  of,  126-129; 
does  not  extend  to  New  World,  130. 

Base  of  operations;  504,  505. 

Bering  Sea ; 170-175,  467. 

Belgium ; a neutralized  state,  77,  124, 
243,  244,  246,  264,  465,  488;  connection 
of  with  Congo  Free  State,  86;  aided 
by  Great  Britain  (1870) , 124,  488 ; re- 
fuses to  convey  German  wounded  over 
its  railways  (1870),  526. 

Belligerency,  Recognition  of ; 77-79, 210, 
302-306. 


Bentham,  Jeremy;  coins  phrase  Inter- 
national Law,  9. 

Berlin,  Treaty  of  (1878)  ; 89,  133,  157, 
245,  289. 

Bismarck,  Prince  ; 128,  410,  490. 

Black  Sea  Conference  (1871) ; 98,  288. 

Blockade ; nature  and  kinds  of,  576-581 ; 
heads  of  law  of,  581-593;  French  and 
English  doctrines  as  to  notification  of, 
587-590;  penalty  for  breach  of,  593, 
594. 

Bluntschli,  J.  K. ; upholds  Prussian 
scheme  of  a volunteer  navy,  433; 
lays  stress  on  intent  of  owner  in 
cases  of  contraband,  615. 

Bombardments ; 344,  443. 

Booty;  357,  358. 

British  East  Africa  Company ; 80,  167. 

British  South  Africa  Company ; 80-82, 
167. 

Brussels  Conference  (1874) ; 331,  332, 
336,  339,  348,  361, 364, 365,  374,  419-424, 
426,  437,  440,  447,  526,  528. 

Brussels  Conference  (1890),  Final  Act  of ; 
95,  216-219. 

Bulgaria;  70,  71,  527. 

Bynkershoek,  Cornelius  van ; 93,  138, 
475,  480,  560,  613. 

Cal vo,  Carlos;  statesman  and  publicist, 
21 ; on  exemption  of  private  property 
from  capture  at  sea,  410 ; on  Prussian 
scheme  of  a volunteer  navy,  433. 

Canada;  not  a sovereign  state,  56;  its 
fisheries,  183-186. 

Canning,  George ; 122,  132. 

Capitulations;  452-454. 

Capture  at  sea ; applies  to  private  as 
well  as  public  property,  362,  382 ; ex- 
ceptions in  case  of  public  vessels,  379- 
381,  of  private  vessels,  383-385;  case 
of  enemy  goods  under  neutral  flag, 
385,  386;  obligation  of  captors  to  send 
in  prizes  for  adjudication,  404-407 ; 


639 


640 


INDEX. 


proposal  to  exempt  private  property 
from  hostile  seizure,  407-41(1. 

Capture  of  fortified  places;  346-348. 

Cartels  and  Cartel-ships;  380,  381,  448. 

Cellamare,  Case  of  Prince  of ; 275. 

Charlemagne ; 32,  33,  69. 

China;  a subject  of  International  Law, 
59,  84 ; has  not  signed  Declaration  of 
Paris,  96,  568,  570 ; operations  by 
France  against,  294-298,  524,  601 ; its 
war  with  Japan,  523,  549,  570,  597. 

Clayton-Bulwer  Treaty  (1850) ; 113,  249, 
250. 

Cleveland,  President;  refuses  to  recall 
Mr.  Keiley,  266 ; dismisses  Lord  Sack- 
ville,  268,  269;  favors  international 
arbitration,  470. 

Coal;  511,  610-612. 

Commercial  Blockades;  579-581. 

Confederations,  kinds  of ; 61-65,  73-75. 

Congo  Free  State ; 80,  85-87,  96,  153. 

Consolato  del  Mare ; 29,  36,  38,  385,  389, 
559-564,  568. 

Consuls  ; their  jurisdiction,  230-233;  nat- 
ure of  their  office,  272,  273;  their 
immunities,  273. 

Continuous  voyages,  doctrine  of ; 594- 
598. 

Contraband  of  war ; neutral  states  not 
bound  to  stop  trade  of  their  subjects 
in,  599-603;  differences  as  to  what 
goods  are  contraband,  604-613;  the 
nature  of  the  offence,  613—1116 ; the 
penalty  for  it,  617-619 ; infection  of 
contraband,  618;  removal  of  contra- 
band goods  from  neutral  vessels,  619, 
620 ; pre-emption,  620-623. 

Contributions;  374,  377,  458. 

Convoy ; 396,  571-575. 

Corporations,  as  subjects  of  Interna- 
tional Law;  55,  79-82,  291. 

Coutumes  d’Amsterdam ; 38. 

Cushing,  Caleb ; his  opinion  on  the  Sitka 
case,  225;  his  book  on  the  Alabama 
Controversy,  545. 

Cutting  Case,  the ; 220. 

Dana,  R.  H.;  on  jurisdiction  over  sea 
for  revenue  purposes,  176;  on  immu- 
nity of  ambassador’s  private  property, 
283;  on  Prize  Court  procedure,  403; 
on  Angary,  516 ; on  neutral’s  respon- 
sibility for  preparation  of  belligerent 
cruisers  in  its  ports,  548 ; on  unneutral 
service,  624. 


Declaration  of  War ; practice  with  re- 
gard to,  299-301;  not  necessary,  301, 
302. 

Delagoa  Bay ; 149. 

Devastation ; 440-444. 

Diplomatic  Ceremonies ; 262,  263,  269- 
272. 

Diplomatic  Ministers;  early  missions  of 
temporary,  258 ; growth  of  permanent 
embassies,  259 ; classification  of,  260- 
262;  immunities  of,  274-284,  629,  636. 

Discovery ; no  title  to  territory  gained 
by  it  alone,  146. 

Domicil;  of  origin,  199;  of  choice,  199, 
319-321 ; matters  determined  by,  200 ; 
domiciled  aliens  not  liable  to  military 
service,  201,  202;  effect  of  on  bellig- 
erent capture,  319-322. 

East  India  Company;  82. 

Egan,  Mr. ; receives  Chilian  refugees, 
281. 

Egypt;  71,  72,  133,  180,  181,  231,  244, 
263. 

Embargo ; 295-297. 

Enemy  character ; how  acquired  and  to 
what  extent,  by  persons,  314-322,  by 
property,  322-327. 

Equality  of  states ; doctrine  of  needs 
revision,  240,  241,  252;  expression  of 
in  ceremonial  observances,  253-257. 

Expeditions,  warlike;  503,  505-508. 

Exterritoriality,  fiction  of ; 205,  20(5. 

Extradition;  its  nature,  233;  earliest 
extradition  treaty,  233;  practices  as 
to  surrender  in  absence  of  treaty,  234, 
235 ; usual  provisions  of  extradition 
treaties,  235-240. 

Feudalism;  its  influence  in  making  sov- 
ereignty territorial,  36,  37. 

Fines ; 374,  377,  378. 

Finett,  Sir  John ; 252,  253. 

Flags  of  Truce ; 447-448. 

Foreign  Enlistment  Acts;  American, 

482,  483,  531,  542,  543,  547 ; British, 

483,  484,  531,  542-546. 

France ; one  of  the  Great  Powers,  66 ; 
its  intervention  in  Egypt,  72,  133,  in 
Greece,  132,  in  Mexico,  134;  protector 
of  Andorra,  73;  guarantees  integrity 
of  Turkey,  124,  309  ; its  rules  as 
to  citizenship,  192;  its  practice  as  to 
foreign  merchantmen  in  its  ports,  203- 
205;  its  operations  against  China,  294, 


INDEX. 


641 


295,  297,  298,  524,  601 ; expels  German 
subjects  (1870),  329;  signs  Declara- 
tion of  Paris,  568. 

Frankfort,  Treaty  of  (1871)  ; 157. 

Fugitive  slaves ; 227-229. 

Fundy,  Bay  of;  141. 

Gallatin,  Mr. ; arrest  of  his  coachman, 
281. 

Garfield,  President;  trial  of  his  mur- 
derer, 277. 

Geneva  Arbitration  (1871) ; 504,  536, 537, 
552-554,  601. 

Geneva  Convention  (1864) ; 95,  338,  339, 
348,  349,  381,  384,  491^93. 

Gentilis,  Albericus  ; 41,  92. 

German  East  Africa  Company ; 80,  167. 

German  Empire;  its  constitution,  62, 
63 ; its  sphere  of  influence  in  the  West- 
ern Pacific,  113;  annexes  part  of 
New  Guinea,  147,  148,  150. 

Ghent,  Treaty  of  (1814)  ; 207,  457. 

Grant,  General ; 361,  452,  507. 

Great  Britain ; one  of  the  Great  Powers, 
66  ; intervenes  in  Egypt,  72,  133,  in 
Portugal,  122,  123,  in  Greece,  132,  in 
Mexico,  134;  recognizes  Liberia,  87, 
Buenos  Ayres,  88,  belligerency  of 
Southern  Confederacy,  304,  305;  has 
certain  powers  over  Transvaal,  112 ; 
guarantees  integrity  of  Turkey,  124, 
of  Belgium,  124,  488,  of  Switzerland, 
487,  of  Luxemburg,  489 ; opposes  Holy 
Alliance,  131 ; annexes  part  of  New 
Guinea,  147,  148,  150 ; maintains  free- 
dom of  Bering  Sea,  170-174 ; pur- 
chases Suez  Canal  shares,  180  ; its 
fishery  controversies  with  the  United 
States,  183-186;  its  rules  as  to  citizen- 
ship, 191-198;  sets  up  courts  in  the 
Western  Pacific,  209  ; does  not  gener- 
ally resort  to  requisitions,  362 ; op- 
poses exemption  of  private  property 
from  capture  at  sea,  411-413 ; proposal 
for  permanent  Treaty  of  Arbitration 
with  United  States,  468-472 ; makes 
neutrality  regulations  more  stringent, 
510,  511 ; its  views  as  to  neutral  re- 
sponsibility for  escape  of  belligerent 
cruisers,  537-539,  543-546  , 551-554  ; 
opposes  rule  Free  Ships,  Free  Goods, 
564,  566;  signs  Declaration  of  Paris, 
564,  568 ; maintains  right  to  search 
neutral  vessels  under  convoy,  572- 
574;  its  Manual  of  Naval  Prize  Law, 
2 T 


596,  606,  608,  609,  616,  621 ; its  views 
as  to  contraband,  608-613. 

Great  Lakes  ; restriction  of  British  and 
American  naval  force  on,  494. 

Great  Powers  of  Europe ; their  predomi- 
nant position,  65-67,  89,  90,  114,  115, 
134,  242,  247. 

Greece ; authority  of  Great  Powers  with 
respect  to,  242,  243;  obligations  as  to 
Corfu  and  Paxo,  496. 

Grotius,  Hugo ; publishes  De  Jure  Belli 
ac  Pads,  9;  statesman  as  well  as 
publicist,  21,  35;  his  history,  41,  42; 
his  horror  of  cruelty,  42,  92,  330,  359 ; 
his  views  as  to  Natural  Law,  43—47 , 
the  independence  of  sovereign  states, 
47,  48,  territorial  sovereignty,  48-52, 
the  freedom  of  the  sea,  169,  resident 
embassies,  259,  the  lawfulness  of  war, 
292 ; discusses  assassination,  437  ; con- 
demns use  of  poison,  438;  his  treat- 
ment of  neutrality,  476-480,  525,  560; 
his  doctrine  of  contraband,  604. 

Guerilla  Troops ; 417-421. 

Gyllenborg,  case  of  Count ; 275. 

Hall,  W.  E. ; on  the  various  kinds  of 
treaties,  95 ; on  extraterritorial  crime, 
220;  on  a mistake  of  Lord  Ellen- 
borough’s,  354 ; on  exemption  of  pri- 
vate property  from  capture  at  sea, 
410;  on  legality  of  a volunteer  navy, 
433;  on  what  constitutes  a base  of 
operations,  504 ; on  passage  of  troops 
over  neutral  territory,  525 ; on  the 
limitation  of  neutral  ship-huilding, 
549 ; on  contraband,  605 ; on  unneutral 
service,  624. 

Halleck,  General  ; discusses  restoration 
of  works  of  art  in  Louvre  (1815) , 370 ; 
fails  to  distinguish  between  neutral 
states  and  neutral  individuals,  498. 

Hautefeuille,  J.  B. ; 95,  396,  574. 

High  Seas ; claims  to  sovereignty  over, 
168,  169 ; freedom  of,  170. 

Holland,  Professor ; explains  neutrali- 
zation, 486 ; draws  up  Manual  of  Na- 
val Prize  Law  for  British  Admiralty, 
606. 

Holy  Alliance ; 130-132. 

Holy  Roman  Empire ; 33,  34,  36,  48, 
69. 

Hooker,  Richard ; his  account  of  law, 
14,  15. 

Hovering  Acts,  the  British;  176. 


642 


INDEX. 


Independence  of  states ; recognition  of, 
87—1)0 ; definition  and  nature  of,  110, 
111. 

Individuals,  as  subjects  of  International 
Law,  55,  83. 

Institute  of  International  Law ; its  work 
and  method,  94 ; its  views  as  to  extent 
of  territorial  waters,  139, 140,  555,  550 ; 
its  conditional  approval  of  Pacific 
Blockade,  298 ; its  Military  Code,  332, 
301,  300,  419,  421,  437;  its  Maritime 
Code,  410,  579,  619,  624;  its  attitude 
towards  the  Three  Rules  of  the  Treaty 
of  Washington,  554  ; its  condemnation 
of  the  Springbok  judgment,  597 ; its 
reception  of  report  on  contraband,  603. 

International  Comity ; 16,234. 

International  Law ; definition  and  nat- 
ure of,  1-8,  10-16,  25;  the  name  mod- 
ern, 8,  9;  its  method,  10-25;  its  origin, 
26,  84;  its  history,  27-54;  its  subjects, 
55-83  ; regards  sovereignty  as  terri- 
torial, 59,  136;  admission  of  new  sub- 
jects, 84-88;  its  sources,  91-106;  its 
divisions,  100-110;  its  rules  part  of 
the  law  of  civilized  states,  400. 

International  Morality;  16,  140,  155. 

Intervention  ; its  nature,  115,  116;  when 
allowable,  117-121 ; history  of  grounds 
and  pretexts  for,  121-133;  complica- 
tion of  most  cases  of,  133,  134 ; doc- 
trine of  non-intervention,  135. 

Japan  ; a subject  of  International  Law, 
59,  84;  its  war  with  China,  523,  549, 
570,  597. 

Jefferson,  Thomas;  leading  principle  of 
his  foreign  policy,  248,  249;  favors 
privateers,  430;  remonstrates  with 
M.  Genet,  481 ; declines  to  prohibit 
trade  of  American  citizens  in  contra- 
band of  war,  600. 

Jurisdiction  of  states;  over  persons  and 
things  within  the  territory,  190-205 ; 
over  ships  on  the  high  seas,  205-207 ; 
over  subjects  abroad,  208,  209;  over 
pirates,  209-212;  over  foreigners  for 
offences  committed  abroad,  219-221  ; 
exceptions  to  ordinary  rules,  221-233. 

Jus  Civile ; 50. 

Jus  Feciale ; 29. 

Jus  Gentium  ; 30,  50-52,  138. 

Kent,  James ; 93, 175. 

King’s  Chambers,  the ; 142,  175. 


Kutschuk-Kainardji,  Treaty  of);  70. 

Law ; Austin’s  definition  and  analysis 
of,  10-12;  Hooker’s  account  of,  14, 
15,  25. 

Laws  of  the  Rhodians ; 29. 

Lebanon,  Mount ; 132. 

Leges  Wisbueuses ; 38. 

Levies  en  masse ; 422^24. 

Liberia,  Republic  of ; 87,  96. 

Licenses  to  trade ; 307,  308,  44!)— 452. 

Lincoln,  President;  581,  586,  634. 

Locke,  John  ; on  Education,  8. 

London,  Convention  of  (1871)  ; 114,  179- 

Louis  XIV. ; 127,  263,  360,  505. 

Louvre ; restoration  of  works  of  art  in 
(1815),  370-372. 

Machiavelli,  Nicolo  ; 35,  108,  476,  477. 

MacMalion , Marshal ; 102,  149. 

Mails  and  Mail-steamers ; immunities 
of,  627,  628. 

Maine,  Sir  Henry;  on  the  mechanism  of 
exchange,  13;  on  Grotius  and  the  Jus 
Gentium,  50;  on  the  freedom  of  tbe 
sea,  168 ; on  the  restoration  of  the 
works  of  art  in  the  Louvre  (1815),  371. 

Maritime  Ceremonials ; 256,  257. 

Marshall,  Chief  Justice;  on  jurisdiction 
over  public  ships  in  neutral  ports,  224, 
225,  552;  on  preparation  of  belligerent 
cruisers  in  neutral  waters,  547. 

Mediation ; 116. 

Mexico ; 88,  96,  134,  220,  250,  430,  568, 

583. 

Monaco ; 72,  73. 

Monroe  Doctrine;  131,248-251. 

Montenegro ; 70,  89,  133,  245. 

Napoleon  Bonaparte;  114,  121,  158,287, 
296,  329,  337,  338,  340,  365,  368,  374, 
450,  487,  552,  577. 

Napoleon,  Louis;  128,  540. 

Nassau ; 596,  597,  633,  634. 

Natural  Law ; 40,  41,  43-47,  50,  52,  91. 

Naturalization ; 193-198. 

Neutral  Individuals ; their  commerce  re- 
stricted , 474, 557-636 ; may  acquire  bel- 
ligerent character,  485;  their  rights 
and  duties  differ  from  those  of  neutral 
states,  498,  499. 

Neutral  States ; growth  of  law  of  state- 
neutrality,  476-484 ; their  rights  and 
duties  to  be  distinguished  from  those 
of  neutral  individuals,  498,  499 ; duties 


INDEX. 


643 


of  belligerents  towards  them,  500-517 ; 
their  duties  towards  belligerents,  518- 
554 ; powers  possessed  by  them  for  the 
protection  of  their  neutrality,  554-556. 

Neutrality;  its  nature,  472-475 ; imper- 
fect neutrality  no  longer  allowed,  484, 
485 ; divisions  of  the  law  of,  499. 

Neutralization ; 465,  485-497. 

Newfoundland  Fisheries ; 183-186. 

New  Guinea ; 147. 

North  Sea  Fisheries  Convention ; 138, 
182. 

Notification  of  Blockade ; 585-590. 

Nyassaland ; 80. 

Occasional  Contraband,  doctrine  of; 
608-612. 

Occupation,  military;  344,  345,  358-378, 
460. 

Occupation,  title  by ; 143-156. 

Oleron,  Laws  of ; 38. 

Orange  Free  State ; 112. 

Oregon  Boundary  Question;  151,  152. 

Ortolan,  E. ; on  jurisdiction  over  public 
ships  in  foreign  ports,  225 ; on  right  of 
search,  396 ; on  occasional  contraband, 
608,  609. 

Pacific  Blockade ; 297,  298. 

Panama,  Congress  of ; 249. 

Papacy,  the ; 33,  34,  48. 

Paris,  Declaration  of  (1856)  ; 96,  97,  386, 
408, 412,  415,  431,  432,  435,  451,  510, 534, 
567-571,  573,  578,  595. 

Paris,  Treaty  of  (1856) ; 70,  84,  114,  157, 
179,  187,  244,  285,  308,  309. 

Part-Sovereign  States ; 55,  67-77,  112. 

Passports ; 448,  449. 

Peace;  legal  effects  of  conclusion  of, 
458-460 ; modes  of  preserving,  464-468. 

Personal  Unions ; 64,  65. 

Phillimore,  Robert ; 93. 

Piracy;  by  whom  justiciable,  206,209; 
its  nature,  209-212;  distinction  be- 
tween piracy  jure  gentium  and  piracy 
by  municipal  law,  213,  214 ; search  of 
vessels  suspected  of  piracy,  395. 

Plevna;  341. 

Poison  ; not  to  be  used  in  war,  438. 

Poland,  Partitions  of ; 129,  457. 

Political  Refugees ; 227,  228,  238,  239. 

Portalis ; his  eminence  as  a Prize  Court 
judge,  101 ; his  maxim  as  to  the  nature 
of  war,  413. 

Portugal ; 122,  123,  149,  540,  541,  606. 


Postliminy ; 389-392,  398. 

Prescription,  title  by ; 159. 

Prisoners  of  War;  historical  account  of 
their  treatment,  333-335  ;.modern  rules 
with  regard  to,  335  , 336 ; question  of 
the  permissibility  of  destroying  them, 
337. 

Private  International  Law ; 7. 

Privateers ; 429-432. 

Prize  Courts ; their  nature,  100, 101,  399- 
402,  558 ; national  responsibility  for 
their  decisions,  402 ; their  jurisdiction, 
402,  403 ; their  procedure,  403,  404. 

Protectorates ; 154, 161-164, 166, 167,  236, 
237. 

Prussia;  one  of  the  Great  Powers,  66; 
its  position  in  the  German  Confeder- 
ation, 74;  passes  male  population 
through  its  army,  114;  joins  Holy 
Alliance,  131 ; signs  Declaration  of 
Paris,  568. 

Pufendorf,  Samuel;  9,  45. 

Quadruple  Treaty  (1840)  ; 72,  179,  244, 
285. 

Quarter ; 332,  333. 

Queensland ; 147. 

Ransom  Bills ; 307,  387-389. 

Ratification  of  treaties ; its  nature  and 
effect,  284,  285 ; whether  states  are 
bound  to  ratify,  285,  286. 

Real  Unions ; 63,  65. 

Reprisals;  293-295. 

Requisitions;  361,374-376,458. 

Ridley,  Bishop;  8. 

Rivers,  Right  to  navigate ; 186-189. 

Roman  Empire,  the  ; 30-32,  35. 

Roumania;  70,  89,  133,  157,  245,  527. 

Royal  Borneo  Company ; 80. 

Royal  Niger  Company ; 80. 

Rule  of  War  of  1756 ; 595. 

Russell,  Earl ; 583,  634,  635. 

Russia;  takes  back  Treaty  of  San  Stef- 
ano,  57 ; one  of  the  Great  Powers,  66 ; 
released  from  engagements  as  to  Black 
Sea,  114 ; intervenes  in  Hungary,  125, 
in  Greece,  132;  joins  Holy  Alliance, 
131 ; recovers  Bessarabia,  157 ; claims 
Bering  Sea,  170,  171 ; issues  a mili- 
tary catechism,  421 ; acquires  a volun- 
teer fleet,  434,  435;  upholds  Armed 
Neutralities,  566;  signs  Declaration 
of  Paris,  568. 

Ryswick,  Conference  of ; 252. 


644 


INDEX. 


Safe-conducts;  448,449. 

San  Marino ; 69. 

San  Stefano,  Treaty  of ; 57,  245. 

Santa  Lucia;  149. 

Savage  Troops ; 424-^426. 

Savoy;  a neutralized  province,  494-496. 

Schleswig-Holstein  Question ; 135. 

Search,  Right  of ; 392-397. 

Servia;  70,  71,  89,  133,  245,  533. 

Seward,  W.  H. ; 515,  583,  634,  635. 

Ship’s  Papers ; 397. 

Silesian  Loan  Controversy;  104,  355- 
357,  566. 

Slave  Trade ; not  piracy  jure  gentium, 
214 ; treaties  against,  215-219. 

Sound  Dues  ; 177,  178. 

Sovereign  States ; 55-67,  112-115,  136, 
137. 

Spain  ; 96,  99,  121-123,  127,  131, 134, 139, 
143,  152,  157,  265,  438,  565,  568,  570. 

Spheres  of  Influence;  153,  161,  164U167. 

Spies;  426-428. 

State ; definition  of,  56 ; continuity  of 
existence  of,  60,  61 ; territorial  pos- 
sessions of,  137-143. 

Story,  Judge ; his  Conflict  of  Laws,  7 ; 
his  eminence  as  a Prize  Court  judge, 
101 ; his  views  as  to  right  of  search, 
393 ; as  to  neutral  trade  in  armed  ves- 
sels, 547 ; as  to  neutral  jurisdiction 
over  belligerent  captures,  556. 

Stowell,  Lord ; his  eminence  as  a Prize 
Court  judge,  101 ; invents  doctrine  of 
continuous  voyage,  102 ; uses  French 
Marine  Ordinance  (1681),  105;  on  al- 
luvium, 142 ; on  the  case  of  John 
Brown,  224 ; on  effects  of  Hostile  Em- 
bargo, 296;  on  domicil,  320,  321;  on 
capture  of  enemy  fishing  boats,  383; 
on  law  of  blockade,  581,  582,  586,  588, 
590-595;  on  law  of  contraband,  607, 
614, 616-618 ; on  law  of  unneutral  ser- 
vice, 626,  628,  631,  632. 

St.  Petersburg,  Declaration  of  (1868) ; 
438,  439. 

Stratagems ; 444,  445. 

Suarez,  Francisco;  41. 

Suez  Canal;  133,  180,  181,  245,  490,  491. 

Terceira  Expedition  ; 506,  507. 

Transvaal  Republic ; 80,  85,  112. 

Treaties ; their  interpretation  and  obli- 
gation, 286-289;  effect  of  war  on,  308- 
313. 

Triple  Alliance  (1668) ; 129. 


Turkey;  its  Christian  provinces,  69-71 ; 
its  relations  to  Egypt,  71,  72;  received 
into  family  of  nations,  84,  89,  245 ; re- 
leased from  engagements  as  to  Black 
Sea,  114;  integrity  of  guaranteed, 
124 ; has  powers  over  Dardanelles  and 
Bosphorus,  179;  cedes  territory  to 
Greece,  243;  is  under  authority  of  the 
Great  Powers,  245 ; signs  Declaration 
of  Paris,  568. 

Twiss,  Sir  Travers ; 152, 176,  433. 

United  States,  the ; management  of  its 
foreign  affairs,  57  ; a Supreme  Federal 
Government,  62 ; its  predominant  po- 
sition on  American  continent,  65-67, 
114,  115,  247-251;  its  dealings  with 
Indian  tribes,  69;  its  independence 
recognized,  88,  89;  recognizes  inde- 
pendence of  Texas,  88,  89;  adheres  to 
Geneva  Convention,  95,  338,  492,  493; 
signs  Final  Act  of  West  African  Con- 
ference, 96;  refuses  to  sign  Declara- 
tion of  Paris,  96,  568 ; protects  Panama 
railway,  123;  warns  Holy  Alliance, 
131 ; its  views  as  to  extent  of  territo- 
rial waters,  139,  142,  175,  176;  its 
boundary  questions,  144,  151,  152; 
purchases  Alaska,  156;  claims  Bering 
Sea  seal  fisheries,  170-174;  assists  in 
abolishing  Sound  Dues,  178 ; its  fish- 
ery controversies,  183-186 ; its  contro- 
versies as  to  rivers,  188;  its  rules  as 
to  citizenship,  191-198;  its  Military 
Manual,  331,  336,  348,  361,  420,  423, 
437  , 444 ; favors  exemption  of  pri- 
vate property  from  capture  at  sea, 
407^109 ; blockades  coast  of  Southern 
Confederacy,  415,  583-585;  opposes 
abolition  of  privateering,  430,  431 ; 
its  new  navy,  461 ; proposal  for  per- 
manent Treaty  of  Arbitration  with 
Great  Britain,  468-472 ; insists  on  neu- 
tral rights  and  duties  (1793) , 481-484 ; 
sells  arms  and  stores  to  French  agents 
(1870),  521 ; its  doctrines  as  to  neutral 
responsibility  for  preparation  and  es- 
cape of  belligerent  cruisers,  538,  543, 
545-554 ; its  attitude  towards  the  rule 
Free  ships,  free  goods,  562-564;  its 
policy  as  to  convoy,  574 ; its  views  as 
to  contraband,  605,  611,  613-615,  619, 
622,  623. 

Unneutral  Service ; what  it  is,  624-629 ; 
nature  of  offence  and  penalty  for  it, 


INDEX. 


645 


629-632;  distinction  between  it  and 
offence  of  carrying  contraband,  633. 

Utrecht,  Peace  of ; 128,  288,  351. 

Vattel,  Emerich;  author  of  Droit  des 
Gens,  9 ; influences  formation  of  law 
of  neutrality,  93 ; on  discovery  and 
occupation,  143,  148,  155;  on  classifi- 
cation of  diplomatic  ministers,  260; 
on  interpretation  of  treaties,  286 ; on 
sequestration,  351 ; on  distinction  be- 
tween rights  of  military  occupant  and 
rights  of  sovereign,  364;  on  devasta- 
tion, 441,  442 ; uses  terms  neutre  and 
neutrality,  475 ; on  imperfect  neutral- 
ity, 478;  on  passage  of  troops  over 
neutral  territory,  525;  on  levies  of 
troops  in  neutral  territory,  529;  on 
maritime  capture,  560. 

Vienna,  Congress  of;  254,  261,  465,  487. 

Vienna,  Peace  of ; 128,  288, 352,  370,  494. 

Volunteer  Navy;  432-435. 

War;  definition  of,  290;  distinguished 
from  other  acts  of  force,  293-299 ; ter- 
mination of,  458-460;  the  burdens  of 
preparation  for  it,  463. 

Washington,  George;  his  fulfilment  of 
neutral  duties,  104,  481-483,  519,  533; 


his  request  for  recall  of  M.  Genet, 
268,  482. 

Washington,  Treaty  of  (1871)  ; 97,  188, 
531,  538,  549-554. 

Webster,  Daniel ; on  protection  of  nat- 
uralized citizens,  196 ; on  impressment 
of  British  seamen  on  board  American 
vessels,  207 ; on  the  Right  of  Search, 
214;  on  the  case  of  the  Caroline  and 
Alexander  McLeod,  502. 

West  African  Conference;  86,  95,  102, 
154,  162,  164,  189,  496,  497,  612. 

Westlake,  Professor ; on  extraterritorial 
crime,  220. 

Westphalia,  Peace  of;  53,  69,  112,  128, 
330,  335,  487. 

Wheaton,  Henry;  statesman  and  pub- 
licist, 21,  93;  on  the  divisions  of  Inter- 
national Law,  107 ; on  protection  of 
naturalized  citizens,  195;  on  extrater- 
ritorial crime,  220;  on  passage  of 
troops  over  neutral  territory,  525. 

White  House,  the ; burned  by  British, 
367,  368,  442. 

Wolf,  Christian  von;  on  the  divisions  of 
International  Law,  107. 

Zouch,  Richard ; 9. 

Zuyder  Zee ; 141. 


MIST  OR  Y. 


The  Constitution  °L  United  States  “L  End  of 

the  First  Century.  By  George  S.  Boutwell,  Ex-Governor  of  Massachusetts, 
Ex-Senator,  and  recently  Commissioner  to  codify  and  edit  the  Statutes  of  the 
United  States.  430  pages.  8vo.  Buckram.  Price,  $2.50.  Full  Law  Sheep,  #3.50. 

MR.  BOUTWELL,  in  addition  to  his  long  and  varied  experience 
in  public  affairs,  both  state  and  national,  was  the  commissioner 
for  the  revision  of  the  statutes  of  the  United  States,  and  the  volume 
prepared  by  him  and  printed  under  his  supervision  in  1877  and  1878  is 
the  basis  of  the  statute  laws  of  the  country  at  the  present  time. 

This  volume  will  contain  the  Organic  Laws  of  the  United  States  ; viz.. 
The  Declaration  of  Independence,  The  Articles  of  Confederation,  The 
Ordinance  for  the  government  of  the  territory  northwest  of  the  River 
Ohio,  The  Constitution  and  the  Articles  of  Amendment.  Under 
each  of  the  Organic  Laws  and  under  the  several  paragraphs  of  the 
Constitution  the  decisions  of  the  Supreme  Court  which  elucidate 
the  text  are  cited  by  name  and  by  reference  to  the  volume  in  which 
the  cases  are  reported  at  length. 

Then  follow  a historical  chapter  in  review  of  the  steps  which  led  to 
the  Declaration  of  Independence,  a chapter  on  the  Articles  of  Con- 
federation, a chapter  on  the  Ordinance  for  the  government  of  the 
territory  north-west  of  the  River  Ohio,  and  then  a short  chapter  on 
the  Preamble  to  the  Constitution. 

The  larger  part  of  the  original  text  of  the  work  is  embraced  in  an 
analysis  of  the  leading  opinions  of  the  Supreme  Court  by  which  the 
several  articles,  sections,  and  clauses  of  the  Constitution  have  been 
interpreted,  explained,  and  enforced. 

It  has  been  the  purpose  of  the  author  to  present  the  Constitution  as 
it  has  been  interpreted  and  rendered  by  the  Court,  and  in  a manner 
so  concise  that  a knowledge  thereof  may  be  attained  by  students  and 
by  the  members  of  the  legal  profession  without  extensive  and  laborious 
research. 


Wm.  A.  Richardson,  late  Chief 
Justice  of  the  Court  of  Claims:  I doubt 
if  there  be  another  person  so  well  fitted 
for  the  work.  The  ground  has  never  be- 
fore been  exactly  covered. 


C.  H.  Adams,  Pres.  University  of 
Wisconsin,  Madison,  Wis. : The  scheme 
of  Boutwell’s  book  is  admirable,  and  the 
work  is  accomplished  in  a manner  worthy 
of  its  design. 


POLITICAL  SCIENCE. 


1 1 8 


Principles  of  Political  Economy. 

By  Charles  Gide,  Professor  of  Political  Economy  in  the  University  of 
Montpelier,  France.  Translated  by  E.  P.  Jacobsen,  formerly  of  University 
College,  London.  With  an  Introduction  and  Notes  by  James  Bonar,  LL.  D., 
of  London.  American  Introduction  by  J.  B.  Clark,  Professor  of  Political 
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$2.00.  Special  price  for  class  use. 

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lays  a just  emphasis  on  the  need  of  impartiality  and  freedom  from 
preconceptions.  In  a book  written  for  real  students  of  a subject,  the 
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John  B.  Clark,  Prof,  of  Pol.  Econ., 
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Dared  to  pronounce  it  beyond  a doubt  the 


best  single  text-book  for  advanced  classes 
in  Political  Economy  that  I have  yet  seen 
in  English.  While  one  may  not  agree 
with  Prof.  Gide’s  conclusions,  one  must 
recognize  that  he  is  eminently  fair  toward 
all  schools  of  thought.  He  never  passes  a 
point  where  the  ways  of  economic  think 
ing  diverge  without  showing  the  other 
path  and  telling  why  some  thinkers 
choose  to  pursue  it.  I think  he  can  in  a 
short  chapter  turn  to  view  more  facts  of 
an  economic  institution  (like  credit,  in- 
equality of  wealth  or  distributive  justice) 
than  any  living  economist. 

James  Munroe,  Prof,  of  Political 
Science  and  Modern  History  in  Oberlin 
College , Ohio:  The  work  impresses  me 
very  favorably.  1 find  in  it  so  much  in- 
telligence, candor,  moderation,  originality 
in  treatment,  illustration,  fairness  and  love 
of  truth,  that  I am  convinced  it  must  take 
a high  place  in  the  public  and  esteem.  I 
wish  for  it  a large  success. 


POLITICAL  SCIENCE. 


lit 


The  State  ; 


Or,  Elements  of  Historical  and  Practical  Politics.  By  Woodrow  Wilson, 
LL.D.,  Author  of  “Congressional  Government.”  Cloth.  720  pages.  Retail 
price,  $ 2.00 . Special  price  for  class  use. 

THIS  book  exhibits  the  actual  organization  and  administrative 
practice  of  the  chief  modern  governments  in  proper  relations 
with  the  practice  of  governments  in  the  past,  and  with  the  general 
principles  of  jurisprudence  and  politics,  as  these  have  been  developed 
by  historical  criticism. 

The  work  is  directly  adapted  to  serve  as  a text-book  for  advanced 
classes  in  High  Schools  and  Colleges.  Although  extended  to  more 
than  six  hundred  pages,  the  magnitude  of  the  subject  has  compelled 
the  omission  of  technical  detail.  It  will  be  found  interesting  and  in- 
structive reading  for  all  students  of  History  and  Politics,  and  a prac- 
tical and  valuable  aid  in  the  education  of  citizens. 


A.  B.  Hart,  Asst.  Prof,  of  Hist.,  Har- 
vard College : It  has  been  adopted  as  a 
standard  book  of  reference  in  Constitu- 
tional Government. 

J.  W.  Jenks,  Prof,  of  Social  Science 
and  Economics,  IndianaUniv.,  Blooming- 
ton: After  a careful  examination  1 have 
adopted  it  for  my  classes.  The  work 
seems  to  me  admirable  both  in  plan  and 
execution. 

John  W.  Queen,  late  Prof,  of  Hist, 
and  Polit.  Science,  Ohio  State  Univ. : 
The  plan  is  well  executed  and  the  work 
is  thoroughly  complete.  It  just  suits  me. 

T.  C.  Karns,  Associate  Prof,  of 
Eng.  Lit.  and  Hist.,  Univ.  of  Tenn.:  It 
has  so  pleased  me,  that  I have  ordered  a 
supply  for  my  class. 

Public  Opinion,  Washington,  D.C.: 
Those  to  whom  these  lines  of  thought 
and  research  are  unfamiliar  will  find  no 
better  introduction  to  the  modern  study 
of  historical  and  comparative  politics. 
The  book  is  remarkable  for  clearness  and 
strength  of  presentation. 


Atlantic  Monthly : Almost  for  the 
first  time,  if  not  for  the  very  first,  the  stu- 
dent has  the  opportunity  of  comparing  all 
the  great  modern  forms  of  government,  as 
well  as  those  of  Greece  and  Rome,  in  a 
single  volume.  No  one  who  knows  Mr. 
Wilson’s  methodical  mind  and  clear  state- 
ment will  doubt  that  he  has  achieved  an 
extraordinary  success  in  making  his  book 
at  all.  He  is  scientific  in  his  method,  but 
he  is  also  intuitive  in  his  perception  of  the 
profound  relations  of  law  which  underlie 
the  forms  of  government,  so  that  the  book 
has  a unity  which  is  always  helpful  to  the 
student. 

The  Nation:  The  best  authorities 
have  been  followed  and  followed  intelli- 
gently, and  the  arrangement  of  details  has 
evidently  been  elaborated  with  the  most 
careful  industry.  The  style  is  clear  and 
there  is  a certain  vivacity  in  the  narrative 
that  relieves  the  dryness  of  the  theme. 

The  Academy,  Syracuse,  N.  Y.  : 
Heretofore  there  has  been  no  convenient 
place  where  one  could  learn  the  distinctive 
peculiarities  of  different  national  govern- 
ments. This  book  is  readable  throughout 
and  abounds  in  fact  and  information. 


civics,  Economics,  and  Sociology, 


Boutwell’s  The  Constitution  of  the  United  States  at  the  End  of  the  Firsl 

Century.  Contains  the  Organic  Laws  of  the  United  States,  with  references  to  th« 
decisions  of  the  Supreme  Court  which  elucidate  the  text,  and  an  historical  chapter  re- 
viewing the  steps  which  led  to  the  adoption  of  these  Organic  Laws.  In  press. 

Dole’s  The  American  Citizen.  Designed  as  a text-book  in  Civics  and  morals  for  the 
higher  grades  of  the  grammar  school  as  well  as  for  the  high  school  and  academy.  Con 
tains  Constitution  of  United  States,  with  analysis.  336  pages.  $1.00. 

Special  editions  are  made  for  Illinois,  Indiana,  Ohio,  Missouri,  Nebraska,  No.  Dakota, 
So.  Dakota,  Wisconsin,  Minnesota,  Kansas,  Texas. 

Soodale’s  Questions  to  Accompany  Dole’s  The  American  Citizen.  Con- 

tains,  beside  questions  on  the  text,  suggestive  questions  and  questions  for  class  debate. 
87  pages.  Paper.  25  cts. 

Gide’s  Principles  of  Political  Economy.  Translated  from  the  French  by  Dr. 
Jacobsen  of  London,  with  introduction  by  Prof.  James  Bonar  of  Oxford.  598 
pages.  $ 2.00 . 

Henderson’s  Introduction  to  the  Study  of  Dependent,  Defective,  and 
Delinquent  Classes.  Adapted  for  use  as  a text-book,  for  personal  study,  for 
teachers’  and  ministers’  institutes,  and  for  clubs  of  public-spirited  men  and  women  engaged 
in  considering  some  of  the  gravest  problems  of  society.  287  pages.  $1.50. 

Hodgin’s  Indiana  and  the  Nation.  Contains  the  Civil  Government  of  the  State, 
as  well  as  that  of  the  United  States,  with  questions.  198  pages.  70  cts. 

Lawrence’s  Guide  to  International  Law.  A brief  outline  of  the  principles  and 

practices  of  International  Law.  In  press. 

Wenzel’s  Comparative  View  of  Governments.  Gives  in  parallel  columns  com- 
parisons of  the  governments  of  the  United  States,  England,  France,  and  Germany.  26 
pages.  Paper.  22  cts. 

Wilson’s  The  State.  Elements  of  Historical  and  Practical  Politics.  A text-book  on 
the  organization  and  functions  of  government  for  high  schools  and  colleges.  720  pages. 
$ 2.00 . 

Wilson’s  United  States  Government.  For  grammar  and  high  schools.  140  pages. 

60  cts. 

Woodburn  and  Hodgin’s  The  American  Commonwealth,  Contains  several 

orations  from  Webster  and  Burke,  with  analyses,  historical  and  explanatory  notes,  and 
studies  of  the  men  and  periods.  586  pages.  $1.50. 

Sent  by  mail , post  paid  on  receipt  of  prices.  See  also  our  list  of  books  in  History. 

D.  C.  HEATH  & CO.,  PUBLISHERS, 

BOSTON.  NEW  YORK.  CHICAGO. 


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